Technology and the Personal Injury Claim

Medical data is shown on a digital technology display

The use of technology in the area of personal injury has long been a topic that has piqued the interest of the legal profession. Instead of being dissuaded by the rapid development of technological innovation, lawyers, the courts, and insurance companies are using technology to their advantage and embracing the benefits they produce.

Assessing Claims: Artificial Intelligence

It’s no secret that the assessment of personal injury claims can be a long and arduous process for all parties involved. In an unprecedented move, one of the largest insurance companies, Zurich Insurance, has introduced artificial intelligence to assist in the assessment of personal injury claims. According to Zurich chairman Tom De Swaan, this technology has reduced the number of hours necessary to evaluate a claim from one hour to mere seconds, and has created a reduction of over 40,000 work hours in total. Although the technology is a work in progress, each claim leads to further developments and improvements in the accuracy and reliability of the technology.

Although Zurich is the first major insurance company to make the transition to artificial intelligence, the Japanese already implemented use of the technology earlier this year. Japanese insurer, Fukoku Mutual Life Insurance, began leveraging IBM’s Watson Explorer, which enables a highly advanced computer program to analyze and interpret documents, images, audio, and video. This technology is able to read thousands of medical documents, motor vehicle reports, and medical reports to calculate payouts.

The short-term success of the introduction of artificial intelligence for Zurich and Japanese insurance companies has resulted in other insurance heavyweights considering the technology in their operations. These developments will not only increase efficiency and returns for insurers, but also mean claims will move through the process faster without unnecessary backlogs in the process. By focusing on automating administrative tasks, technology will reduce the need for intermediaries while streamlining the claims process. Lawyers can now spend more time developing their cases and interacting with their clients.

Technology and Personal Injury Advocacy: Thinking Outside the Box

Technology in the courtroom can be particularly advantageous for personal injury lawyers. Instead of resisting the process of change through technology, lawyers are beginning to radically restructure they way they view claims and the ways technology can benefit their clients.

The inextricable link between technology and the law has resulted in innovative developments by creative legal minds who have a passion for breaking new ground. Recently, a Canadian law firm based out of Alberta, McLeod Law, used a Fitbit to prove that their client, a personal trainer injured in a motor vehicle accident, was far less active post-accident than the average woman of her age and profession. The Fitbit (which has the ability to track the number of steps the wearer takes, plus the number of calories burned) provided comprehensive data that was used to support the Plaintiff’s case. Experts then imported the raw data into a program called Vivametrica, which provides predictive analysis of identifiable cohorts in the population when compared against the client’s individual statistics.

The result: the judge was able to award the Plaintiff damages for pain and suffering based on concrete quantifiable data. The potential benefit of using statistics as opposed to medical reports with competing qualitative findings could have the potential to reduce costs associated with obtaining these reports.  The value of a medical report is diminished when it can be countered by equally persuasive expert reports from opposing counsel. These fresh alternatives circumvent the traditional limitations of evidence in personal injury law and could be a remedy to reduce court time and associated costs.

Shortcomings and Consequences

It should be noted that this technology is not without its flaws. More recently, evidence called into question Fitbit and similar devices’ ability to accurately measure heart rate and calories burned. A Stanford study found that one wearable device was off by an average of 93 percent. The consequences of such a high margin of error could be significant – especially if these devices are used in a court of law.

Despite their potential, the reliability and the accuracy of these devices force litigators to bolster our arguments – as lawyers, we must be conscious of the potential for error and the limitations that new technology may have. It takes time to improve upon the mistakes of these devices and to test results in controlled environments. Over time, the flaws in the design of these devices will be improved and accuracy should increase.

Technology and the Advent of New Personal Injury Claims

Technology is supposed to make our daily lives more convenient. Cars are now cruising through our streets without human drivers, drones are now delivering packages to our doorsteps, and smartphones provide us with an endless array of information at our fingertips; the influence of technology can be felt far and wide. However, the harsh reality is that although technology is meant to simplify, oftentimes, it can complicate our lives – in addition to making them more dangerous than ever before.

More recently, the genesis of the self-driving car has sparked controversy over the high number of accidents caused by limitations in the technology. Studies have suggested that despite being touted as the future of cars, self-driving cars get in far more accidents than cars driven by humans. Evidence has found that autonomous cars are five times more likely to crash than cars operated by humans.

Hoverboards have also created risk for consumers. This year saw the recall of thousands of the devices, all due to a faulty battery that resulted in the product catching on fire and injuring users or property. In addition, drones have produced risks to traffic including aircraft, cars, and pedestrians. The potential for harm and the damage these devices have done to human life often create a legitimate cause for action in a court of law.

The legal implications of advancing technology mean that lawyers must utilize their unique set of skills to create innovate arguments that utilize technology while simultaneously accounting for its limitations. Before we vociferously discount technology, we must be aware of the potential it has. We must embrace the benefits it produces, but also be sensitive to its ability to mislead, obfuscate, and injure.

Michael Giordano
Written by

Michael Giordano is a founding partner of Avanessy Giordano LLP. Prior to establishing his own practice, he was a partner of a prominent Mississauga personal injury firm.

He completed his law degree at the University of Ottawa. Prior to law school, Michael studied English and Law & Society at York University.

Michael is an active member of the Ontario Trial Lawyers Association and is the current Vice-Chair of the New Lawyers Division. He is a regular contributor to the OTLA blog and has also written for The Litigator.