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curation through a hospital-branded app and iPad “bar”:
Patients with diabetes, high cholesterol or smoking cessation needs can test the best apps to manage their health and wellness . . . For those who find the process overwhelming, the [bar] is staffed by a technology specialist who can assist in choosing the right product or app for your lifestyle as well as providing setup guidance and support.162
Clearly, providers that recommend or curate apps or coach patients in their use will have increased exposure if their choices or techniques are negligent and cause damage. Some institutional providers may seek to make curation more manageable by maintaining limited app formularies, although that could backfire if the contents of the formulary do not keep pace with the rapidly changing app ecosystem.163 That leads to a broader observation as to the standard of care appropriate for app recommending or curating. The very few prescription-only apps currently available are typically for diabetes or other chronic disease monitoring,164 and as with other prescribing duties, a professional standard of care would seem appropriate.165 However, a court could view recommending or curating apps as more of a ministerial task and use a more general standard of care with regard to keeping abreast of technical developments.166
C. Informed Consent
Liability assertions involving recommendation or curation are essentially informational, which raises the issue of whether and to what extent informed consent duties are implicated by health care app use. Consider, for example, a provider approving or endorsing the use of an innovative, augmented or virtual reality wearable during surgery or a provider recommending a novel
162. Ochsner’s O Bar Makes it Easier for Patients to Manage their Health, OCHSNER HEALTH SYSTEM (Nov. 17, 2014), http://blog.ochsner.org/articles/ochsners-o-bar-makes-it- easier-for-patients-to-manage-their-health. 163. See FED. TRADE COMM’N, PROTECTING CONSUMER PRIVACY IN AN ERA OF RAPID CHANGE (2010), https://www.ftc.gov/sites/default/files/documents/reports/federal- trade-commission-bureau-consumer-protection-preliminary-ftc-staff-report-protecting- consumer/101201privacyreport.pdf. 164. See, e.g., Roberto A. Ferdman, The World’s First Prescription-Only Smartphone App, QUARTZ (Jan. 6, 2014), http://qz.com/163792/the-worlds-first-prescription-only- smartphone-app/. 165. See Hall v. Hilbun, 466 So.2d 856 (Miss. 1985) (discussing the higher standard of care for physicians). 166. See, e.g., Helling v. Carey, 519 P.2d 981, 983 (Wash. 1974) (“Under the facts of this case reasonable prudence required the timely giving of the pressure test to this plaintiff. The precaution of giving this test to detect the incidence of glaucoma to patients under 40 years of age is so imperative that irrespective of its disregard by the standards of the opthalmology profession, it is the duty of the courts to say what is required to protect patients under 40 from the damaging results of glaucoma.”).