apps may face strict liability claims for breach of warranty or common law product liability. 57
III. HEALTH CARE PROFESSIONAL LIABILITY
To hold a physician or other healthcare professional liable for malpractice, a plaintiff must establish four elements. 58 First, duty—the plaintiff must establish that a treatment relationship was in effect at the time of breach, and such that the defendant health care professional owed a duty of care to plaintiff patient. 59 Second, breach—the plaintiff must establish that the defendant professional’s conduct fell below the standard of care. 60 Third, damages—the plaintiff must establish that she or he suffered physical harm. 61 Fourth, causation—the plaintiff must establish a sufficient nexus between the defendant’s breach and the plaintiff’s harm. 62 As discussed in detail below, for physicians or other health care professionals who participate in the design or development of mobile health products, the primary issue is likely to be duty. 63 For those who use mobile health products in the context of patient care or who recommend or prescribe the use of such products by patients, the primary issue is likely to be breach. 64
A. Professionals Contributing to Design of Apps
Some, but far from all, mobile health products are developed with input from healthcare professionals. 65 In addition to the strict liability exposure faced by all app developers and marketers, healthcare professionals who participate in product development may also face professional malpractice liability. Ultimately, healthcare professionals who participate in the design of
57. Kevin M. Henley, Tracking the Likelihood of Liability from Health Apps, LAW360 (Mar. 11, 2015), http://www.law360.com/articles/629313/tracking-the-likelihood-of-liability- from-health-apps. 58. E.g., B. Sonny Bal, An Introduction to Medical Malpractice in the United States, 467 CLINICAL ORTHOPEDICS & RELATED RES. 339, 342 (2009), available at http://doi.org/ 10.1007/s11999-008-0636-2. 59. E.g., id. 60. E.g., id. 61. E.g., id. 62. See e.g. id.; see also Provost v. Fletcher Allen Health Care, 2005 VT 115, ¶ 16, 890 A.2d 97, 100; Giles v. Anonymous Physician I, 13 N.E.3d 504, 510 (Ind. Ct. App. 2014). 63. See infra Part III. A (discussing physicians who could be found liable for contributing to the design of a medical app). 64. Carroll, supra note 56, at 429. 65. See e.g., Maged N. Kamel Boulos et al., Mobile Medical and Health Apps: State of the Art, Concerns, Regulatory Control and Certification, 5 ONLINE J. PUB. HEALTH INFORMATICS 1, 9 (2014), https://www.researchgate.net/publication/261222082_Mobile_ medical_and_health_apps_State_of_the_art_concerns_regulatory_control_and_certification (noting various apps had between 32-34% professional involvement).