community—could act as a temporary drag on the adoption of new mobile health technologies by professionals, who may prefer to proceed with caution until prevailing professional practices emerge with respect to mobile health use. 21 Over time, however, if these technologies prove useful and reliable, they could be incorporated into the standard of care in some contexts. 22 At that point, the customary-practice standard of care might accelerate adoption of mobile health technologies by recalcitrant physicians who would otherwise face potential liability for failing to make use of applications that have been incorporated into the prevailing practices of the profession. 23 Similar conclusions apply to our treatment of product liability-based exposure of app developers and vendors. Notwithstanding the dearth of decided cases, direct institutional healthcare liability or product liability theories could be applied to those involved in mobile development and deployment. This is the case whether the actors are inside or outside the traditional healthcare system. Part II of this paper provides an introduction to the terminology used, and presents a brief typology of the apps appearing in the health care space. Part III discusses the potential liability of physicians and other healthcare professionals. Part IV discusses the potential liability of institutional healthcare providers such as hospitals (that, in many cases are dependent upon the finding of fault in an individual professional). Part V discusses the applicability of product liability to mobile health developers and vendors. Part VI explains some of the issues that may arise when patients or consumers seek damages following privacy or security breaches. The survey concludes by noting that regulation by litigation will be a significant force in the app and wearable arena during a period of light regulation by traditional
21. See Deven McGraw et al., Going Digital with Patients: Managing Potential Liability Risks of Patient-Generated Electronic Health Information, 5 J. PARTICIPATORY MED. (Dec. 18, 2013), available at http://www.jopm.org/perspective/narratives/2013/12/18/going-digital- with-patients-managing-potential-liability-risks-of-patient-generated-electronic-health- information/ (noting the reluctance of some physicians to receive patient data through digital forms because of professional liability concerns and the lack of a clear standard of care). 22. The disadvantage of the customary-practice standard of care, its indeterminacy, is linked to its advantage, flexibility. The customary-practice standard is flexible enough to accommodate changes in technology and professionals’ use of it. New technology—whether it be MRI, pulse oximetry, or an app—challenges health care professionals to adapt their practice. When adoption of such a technology becomes prevailing practice among the relevant profession, it is more or less automatically incorporated into the customary-practice standard of care. 23. Overall the literature is murky when it comes to physicians and the adoption of health information technologies. For example, there is some evidence that physicians who adopt EHRs have a lower malpractice rate, Mariah A. Quinn et al., The Relationship Between Electronic Health Records and Malpractice Claims, 172 ARCH INTERN MED. 1187, 1187-89 (2012). However, any impact does not seem to be factored into medical malpractice premiums, Hye Yeong Kim & Jinhyung Lee, Effects of Health Information Technology on Malpractice Insurance Premiums, 21 HEALTHCARE INFORMATICS RES. 118, 118-19 (2015).