2016 Liability for Mobile Health & Wearable Technologies 79
defendant had breached the standard of care for general practitioner physicians. 134 Similarly, in Forsberg v. Edward Hospital and Health Services, another state court found that the defendant physician reasonably relied on nurses who were responsible for collecting surgical sponges during a surgery. 135 In Pacheco v. Ames, however, the court found that, under the circumstances, the defendant oral surgeon unreasonably relied on a referring dentist’s handwritten notation on an x-ray, resulting in a procedure performed on the wrong side of the patient’s mouth. 136 The relevant inquiry, then, is whether the defendant professional’s reliance on any given resource (be it a nurse, a medical record, or a mobile health product) was reasonable under the circumstances. 137 By implication, if, for example, a physician using a connector product misreads a patient scan on a mobile device due to poor lighting conditions, the appropriate question for purposes of the physician’s malpractice liability is whether she conformed to the prevailing standard of care and exercised reasonable medical judgment under the circumstances. 138 This is not much different from a situation where a physician misreads a scan at a time when she is experiencing blurry vision—should she have realized that conditions were inadequate and adjusted her conduct appropriately? Was it reasonable for her to rely on her vision, which she knew to be compromised? Similarly, a physician’s reliance on an informer or educator app in the course of researching a patient’s condition is not fundamentally different from reliance on a print publication. Would a reasonably prudent physician have known that the product was unreliable? If a physician relies on a replicator product to serve as a stethoscope, or an automator product to determine the appropriate dose of anesthesia and that product is poorly designed or malfunctions, the question will be whether the physician’s reliance on the product reflects sound professional judgment in light of what she knew or should have known about it. Did the physician take reasonable steps to inform herself of the limitations of the product? The standard of care is typically quite forgiving, holding physicians liable in situations where the dangers of the defendant’s approach were widely known among peer physicians or should have been evident to her under the circumstances, 139 but generally not requiring that physicians take extraordinary steps to exhaustively research every technology or resource on
134. Id. at 1318. 135. Forsberg v. Edward Hosp. & Health Servs., 906 N.E.2d 729, 737 (Ill. App. Ct. 2009). 136. Pacheco v. Ames, 69 P.3d 324, 330 (Wash. 2003). 137. Id. 138. E.g., Bal supra note 58, at 342. 139. See, e.g., Estate of Kurstin v. Lordan, 25 A.3d 54 (D.C. 2011) (holding physician liable for ordering administration of Lovenox during surgery, contrary to hospital policy and widely recognized safety concerns).