clean. 7 Some mobile health apps are “provider-facing,” targeting the traditional physician-patient relationship designed to improve data access or efficiency. 8 Other apps, while designed for consumers, may be developed by traditional healthcare providers or their business partners. 9 Many patients will acquire apps or wearables with the intention of presenting the data to their providers, looking for professional approval, further recommendations, or even technical assistance. 10 Some providers may attempt to manage the app onslaught by recommending only certain apps or even curating their own app formularies. 11 Much of the mobile health revolution likely will play out in lightly regulated spaces bereft of most of the privacy, security, and safety rules associated with traditional health care. 12 The non-provider actors at most risk of legal liability are the developers and app vendors who may have only a cursory knowledge of the exceptional legal rules and protections to which patients and providers are accustomed. Most of the legal commentary regarding mobile health has focused on direct regulation. 13 Congress and several federal agencies have begun to
7. See id. (noting that there is a “health care revolution” going on and that mobile health is “poised to upset the model”). 8. See generally Pragati Verma, How Electronic Health Records Will Be More Helpful to Doctors – And Patients, FORBES (April 27, 2015, 10:00 AM), http://www.forbes.com/sites/cit/ 2015/04/27/how-electronic-health-records-will-be-more-helpful-to-doctors-and- patients/#45480d777a15 (predicting flexible, mobile cloud-based acute care electronic health records will enable better integration, allowing physicians to view a patient’s information, respond to patient messages using quick text and assess a patient’s refill requests). 9. See Bob Spoerl, 6 Trends in an Era of Consumer-Driven Healthcare, BECKER’S HOSP. REV. (June 6, 2012), http://www.beckershospitalreview.com/strategic-planning/6-trends-in- an-era-of-consumer-driven-healthcare.html (stating, “The fact that hospitals are seeking to make more intimate connections with patients and treating them as consumers is not a new phenomenon. But now, in an era when mobile access and social media brings a sense of hyper- connectivity to life, the trend may seem more pronounced than ever before.”). 10. See Joseph Conn, Easy on Those Apps: Mobile Medical Apps Gain Support, but Many Lack Clinical Evidence, MODERN HEALTHCARE (Nov. 28, 2015), http://www.modern healthcare.com/article/20151128/MAGAZINE/311289981 (explaining that approximately sixteen percent of health care professionals currently use mobile applications with their patients, but that forty-six percent plan to do so in the next five years). 11. See id. (recommending home blood-pressure apps because patients’ blood pressure often rises when they enter the office). 12. Mobile Medical Applications, U.S. FOOD & DRUG ADMIN., http://www.fda.gov/ MedicalDevices/DigitalHealth/MobileMedicalApplications/ default.htm#e (last updated Sept. 22, 2015). 13. See, e.g., Nathan Cortez, The Mobile Health Revolution?, 47 U.C. DAVIS L. REV. 1173, 1179 (2014) (focusing on the mobile health’s potential of mobile health by examining regulators such as the FDA); see also Nicolas P. Terry, Mobile Health: Assessing the Barriers, 147 CHEST 1429, 1430-33 (2015) (focusing on the potential of mobile health apps in the context of safety and privacy, discussing regulations in mobile health apps).