[T]he degree of skill and care . . . that which would be exercised by competent practitioners in the defendant physicians’ field of medicine . . . Negligence may not be inferred from a bad result. Our law says that a physician is not an insurer of health, and a physician is not required to guarantee results. He undertakes only to meet the standard of skill possessed generally by others practicing in his field under similar circumstances. 119
If a physician’s use or non-use of a mobile health product reflects reasonable medical judgment, then she or he is unlikely to be held liable, even if the product malfunctions or is poorly designed, or if key information buried in masses of irrelevant data (collected by the app more or less continuously as opposed to during discrete clinical encounters) is missed. 120 In a case of misuse, a court might consider whether the physician should have known how to use the technology properly or should have refrained from using it if she was not sufficiently informed regarding its proper use. 121 In the case of product malfunction, the question would be whether the physician knew or had reason to know that the product was defective, poorly designed, or otherwise prone to malfunction. 122 In the case of non-use of patient data provided via mobile health products, the question would be whether a reasonably competent physician could have and would have taken hours to sort the wheat from the chaff. 123 It is worth noting that in about half of jurisdictions, the standard of care is defined differently for informed consent claims. 124 If the basis of a claim by an injured patient is that the physician failed to inform him adequately of the risks associated with the use of a mobile health product or failed to inform him of the availability of a mobile health product as an alternative to the recommended treatment, these jurisdictions adopt a patient-centered, rather than a physician-centered, standard of care. 125 In these courts:
[T]he patient’s right of self-decision shapes the boundaries of the duty to reveal….Thus the test for determining whether a particular peril must be divulged is its materiality to the patient’s decision: all risks potentially affecting the decision must be unmasked. And to safeguard the patient’s
119. McCourt ex rel. McCourt, 457 S.E.2d at 607 (approving trial court instructions). 120. See id. (explaining that, “negligence may not be inferred from a bad result”). 121. See id. (stating that a physician’s duty is determined by the skill and care that a competent physician in the same field of medicine would do under the circumstances). 122. See id. 123. See id. 124. See Jamie S. King & Benjamin Moulton, Rethinking Informed Consent: The Case for Shared Medical Decision-making, 32 AM. J.L. & MED. 429, 430 (2006). 125. See id. at 438-39 (explaining the importance of a patient’s knowledge of risks, benefits, and alternatives of a procedure).