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could face professional disciplinary action—which is akin to malpractice liability in that it is based on deviation from the customary-practice standard of care, but distinct, in that it does not rely upon establishment of a duty of care owed by the physician to the patient—for providing medical services in the absence of a physician-patient relationship. 112 Notably, unlike malpractice liability, disciplinary action would be possible even if no identifiable patient has been harmed by the defendant-physician’s actions. 113 Disciplinary action of this sort is rare, but may be more likely in situations in which a professional board perceives the physician to be engaged in a commercial enterprise, such as app development, solely for financial gain, undermining the reputation of medicine as a calling. 114
B. Professionals Relying on Apps for Patient Care
Healthcare professionals who use mobile health technologies directly in the context of patient care may be held liable for malpractice if a patient is harmed. 115 Conversely, a health professional who declines to make use of data provided by a patient via mobile health technology, which is likely to be overwhelming in its volume, could be held liable if she misses important information, delaying diagnosis and harming the patient. 116 But in either case, the plaintiff must establish the breach element by showing that the defendant failed to exercise sound professional judgment in the use, or non-use, of mobile health technologies. 117 The customary-practice standard of care adopted by courts118 to adjudicate the breach element of malpractice claims requires that, when diagnosing a condition, a physician exercises:
112.Id. (finding that the board could sanction a physician even though the physician failed to establish a physician-patient relationship). 113. N.D. CENT. CODE § 41-17-31 (West 2015) (listing grounds for disciplinary action, including conduct that does not necessarily harm an identifiable individual). 114.Se e Golob, 176 P.3d at 705 (supporting the board’s decision to sanction a physician for profiting by doing business over the Internet without establishing relationships with patients). 115. Medical Malpractice and Liability, Teleheath Res. Ctrs., http://www. telehealthresourcecenter.org/toolbox-module/medical-malpractice-and-liability (last visited Mar. 18, 2016) (explaining that medical malpractice cases arise when a patient is harmed or injured and telehealth presents unique issues in malpractice). 116.Se e Hoffer v. Johnson, 2003 ND 79, ¶ 9, 660 N. W.2d 909, 914 (finding that there is no remedy for malpractice without an injury). 117.Se e McCourt ex rel. McCourt v. Abernathy, 457 S.E.2d 603, 607-08 (S.C. 1995) (holding that a physician breaches the standard of care duty by failing to exercise the same degree of care and skill as a competent physician in the same field of medicine). 118.Se e Peter Moffett & Gregory Moore, The Standard of Care: Legal History and Definitions: the Bad and Good News, 12 W. J. EMERGENCY MED. 109, 111 (2011) (stating that McCourt is one of the three major cases defining the modern standard of care).