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which they rely. The adoption of a new technology may introduce some uncertainty as to what physicians know or should know about the design and appropriate use of that technology. Like any other treatment innovation, the customary- practice standard of care for malpractice—which boils down to what other physicians in good standing would have done under the circumstances140— can lead to liability concerns acting as a drag on adoption of innovative approaches. Doing things “the old way” can appear safer from a liability standpoint, but that is true only up to an ill-defined tipping point at which the innovation becomes the prevailing standard of care. In any case, the basic inquiry is the same; there is no need for the development of new mobile health-specific doctrines.
C. Healthcare Professionals Recommending Apps
Healthcare professionals who recommend the use of mobile health technologies to their patients, without using them directly, could similarly be held liable if the recommendation to use mobile health products for the purposes of patient self-care does not reflect sound professional judgment or deviates from the prevailing standard of care.141 Again, this is not fundamentally different from low-tech scenarios. If a nurse practitioner recommends that a patient use a logger and tracker physical fitness app, she must take reasonable steps to inform herself regarding the regimen that the app will urge the patient to adopt and must apply sound medical judgment to determine whether that regimen is appropriate in light of the patient’s condition. There are probably more permutations, and perhaps more unknowables, in this scenario compared to a nurse practitioner recommending that a patient start a particular exercise regimen such as P90X, because the app is personalized and may allow for nearly endless permutations. This problem is amplified if we are talking about a pediatrician recommending that parents use a customizer product that amounts to an all- in-one diagnostic tool before calling the physician. It would be harder for a physician to evaluate all of the possible recommendations of a customizer app than to read a book that gives basic advice on whether to call a pediatrician or take a child to the emergency room based on particular symptoms. But again, the basic doctrinal approach—according to which the relevant questions are what the professional should have known about the product she was recommending or prescribing and what, if any, warnings or instructions regarding self-care should the professional have conveyed to the
140. See McCourt ex rel. McCourt, 457 S.E.2d at 607. 141. Id.