Liability for Mobile Health and Wearable Technologies*
Nicolas P. Terry** & Lindsay F. Wiley***
Notoriously, health care is relatively immune to traditional market forces1 and is more difficult to disrupt than other industries. 2 Instead, change has been reliant on massively compromised and politically fraught interventions, such as the Affordable Care Act. 3 Mobile health offers a different, parallel path. It promises better and more personalized care combined with improved convenience and lower cost. 4 Many, if not most, mobile health applications (“apps”) and wearable devices that track fitness, wellness, or other physiological data do not support existing models of health care. 5 Rather, developers are delivering a novel consumer-centric aesthetic and functionality that traditional healthcare policymakers are only now beginning to conceptualize. 6 Notwithstanding, the division between traditional health care and mobile health is anything but
* © 2016 Nicolas Terry & Lindsay Wiley. All rights reserved. This paper is based on presentations we prepared for a workshop sponsored by the American Association for the Advancement of Science (AAAS). We thank all the workshop participants and, in particular, Deborah Runkle, Senior Program Associate at AAAS for her valuable comments. We also thank Mark Levy and Maya Frazier, American University Washington College of Law JD candidates, for their helpful research assistance and Kelci Dye, Indiana University Robert H. McKinney School of Law JD candidate, for her diligent editing. Hall Render Professor of Law & Executive Director, Hall Center for Law and Health, Indiana University Robert H. McKinney School of Law. Email: email@example.com. Associate Professor of Law, American University Washington College of Law. Email: firstname.lastname@example.org. 1. Alain C. Enthoven, Market Forces and Efficient Health Care Systems, 23 HEALTH AFF. 25, 25 (2004). 2. See Nicolas P. Terry, Information Technology’s Failure to Disrupt Health Care, 13 NEV. L.J. 722, 723 (2013) (noting the difficulties faced by one possible health care disruptor, health information technology (HIT)). 3. See generally Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended at 42 U.S.C. § 18001 (Supp. 2010)). 4. Nicolas Terry, Innovation in Mobile Health Impacts Law, IND. LAW. (July 15, 2015), http://www.theindianalawyer.com/innovation-in-mobile-health-impacts- law/PARAMS/article/37699. 5. Id. 6. Id.