2016 Liability for Mobile Health & Wearable Technologies 71
mobile health products for use by the general public are unlikely to be held liable on the basis of professional malpractice for injuries caused to individuals with whom they have not entered into a treatment relationship. A physician who exercises medical judgment in designing or developing a diagnostic automator or customizer, for example, might fall below the standard of care and her negligence might cause injury to patients whom are misdiagnosed or mistreated by providers relying on the app. However, in the absence of a physician-patient relationship between the developer-physician and the injured plaintiff-patient, the plaintiff will not be able to establish the duty element of a malpractice claim. 66 Other kinds of tort liability, such as products liability or ordinary negligence, could be a concern, but not professional malpractice. 67 Where there is no nexus at all between the patient-plaintiff and the developer-physician, the duty element would not be satisfied. 68 On the other hand, if the developer is also the treating physician ( i.e., a physician develops an app and then uses it for the care of her own patients) then the duty element would be met and the court would move on to breach and causation to determine whether the case should be brought before a jury. 69 There is, perhaps, a murky middle ground where a physician develops an app and then shares it with other physicians in her practice or network, who then rely on it for diagnosis and treatment or prescribe it for use by their patients. As detailed below, in analogous situations, courts often find that a physician- patient relationship is formed based on minimal interaction between the two parties, but some form of engagement of the physician with a particular patient is generally required. 70
1. Cases Suggestive of Liability
A physician-patient relationship can be formed with quite minimal contact between the physician and patient, or even in the absence of any physical contact between the two at all.71 The question is typically whether medical judgment has been exercised with regard to a particular patient’s case. 72 For
66. See Bal, supra note 58, at 342. 67. See Rose, supra note 17. 68. See Giles v. Anonymous Physician I, 13 N.E.3d 504, 510-11 (Ind. Ct. App. 2014) (discussing duty of care and the relationship between the physician and patient). 69. Id. 70. Id. 71. See, e.g., Adams v. Via Christi Reg’l Med. Ctr., 19 P.3d 132, 139-40 (Kan. 2001) (discussing various cases where a relationship between the physician exists or does not exist); see also Bienz v. Cent. Suffolk Hosp., 557 N. Y.S.2d 139, 139-40 (App. Div. 1990). 72. See, e.g., Bienz, 557 N. Y.S.2d at 139.