There are always new avenues opening for lawsuits and liability imputation. Now apps are being developed and used by healthcare professionals to diagnose and treat medical symptoms. Along with the apps and treatments come medical liability and malpractice suits. But, who’s to blame when something goes wrong? This is new ground for plaintiffs, defendants and the courts alike. “This is an area of the law in which there frankly is not very much law at all, and the courts are going to craft it as they go alines,” said plaintiff attorney Gerald Sterns of Sterns & Walker.
An article ran in TechNewsWorld entitled Life, Death and Lawsuits.
Developers are making apps for both consumers and healthcare providers. A patient might want to monitor their own heart rate, while a physician might look up a possible diagnosis on his iPhone. The idea is that apps can put more technology in a consumer’s pocket so they can cut back on doctor office visits and expensive emergency room visits. Eventually, though, something will go wrong and somebody may get damaged or dead. What then? Who is at fault for an app that misses its mark or flubs a diagnosis?
In other words, who is on the hook for the liability – who will be named as defendants – when the lawsuit is filed? The app developer? The App Store (for example, Apple, Inc.) who sold the software? The service provider (ISP, AT&T or another carrier)? All of the above?
“In theory, they all could be sued,” Georgia Sen. Josh McKoon, an attorney at Day Crowley, a firm that specializes in healthcare law for large healthcare organizations and hospitals, told TechNewsWorld. “Right now, there are no hard and fast rules — and where there are no set rules, the risks run very high.”
In this modern world of liability, fault, blame – and deep pockets – just about anybody in the chain of distribution could be named in litigation.
The struggle to balance the harm to society from frivolous lawsuits against adequately repairing genuine harm to the public or a patient through the court systems continues to this day. It is exceedingly difficult to devise laws in such a way that the one can be sifted from the other.
However, it is imperative not to assume that lawsuits against app use would be frivolous. Why? Because apps will become central to medical care. In other words, we aren’t just discussing the impact of a weight loss ditty or a stop smoking tip list. As discussed in Parts 2 and 3 of this series, apps are increasingly striving to replace or enhance existing diagnostics both for home, hospital and provider use.
J. Carter Thompson is an attorney with Baker Donelson and leads their product liability and mass tort group. He also is co-chair of the drug, device and life sciences industry group. Thompson told TechNewsWorld , “This is especially true in the wake of tort reform for healthcare providers. We are seeing more and more instances in which a manufacturer is also sued along with a healthcare provider in what used to be a garden variety malpractice case.”
That is because many state legislatures have imposed caps on non-economic damages against healthcare providers, he says, but no such caps are in place for manufacturers. “In my view, this new reality is unfortunate since, among other things, it drives up the cost of cutting-edge, life-saving technology.”
In other words, if healthcare providers are protected from paying the full damages, then app developers, app marketplace owners and even carriers (especially those like Sprint (NYSE: S) and Verizon that are actively involved in app development) are at greater risk of being sued.
Owners and distributors of apps will likely be the first named in a legal liability contest. The developer would probably be the first party to have their feet held to the fire should something go wrong. “If you have created an app marketplace, you have created certain expectations that the apps therein are of a certain quality and value to the user,” said Georgia Senator Josh McKoon to TechNewsWorld.
“It’s very much like other litigation, where a plaintiff can sue a car manufacturer but also the dealer and parts suppliers, for example,” explains McKoon. “If you have created an app marketplace, you have created certain expectations that the apps therein are of a certain quality and value to the user. So, yes, app marketplace owners and app development partners such as certain carriers are legally exposed.”
On the other hand, in litigation the plaintiff must prove the app was faulty, or the healthcare provider committed malpractice when they relied on the app and caused an injury. In some cases, an app may cause more or less susceptibility to a lawsuit, depending on what it is used for and how it functions. For instance, in the case of a diabetic who used an app to take their blood sugar level, and the app malfunctioned giving a false low or normal sugar reading. If the patient’s actual reading was too high, the patient may claim the app caused them to not seek immediate medical treatment; however, if the actual blood sugar count was extremely low or high, other symptoms should have alerted the diabetic to get treatment.
Indeed, many of the proof requirements are pretty tough to meet. But just in case, what can app developers do to try to shield themselves from at least some of the legal liability?
“Liability will not be assigned without regard to circumstance, and the smart health app providers rain down disclaimers like a summer thunderstorm,” Theodore F. “Ted” Claypoole, attorney at Womble Carlyle Sandridge & Rice, told TechNewsWorld.
“Any plaintiff looking to pin liability on the application companies would have to swim through all these disclaimers and explain why she relied on the app for serious health information when the instructions specifically told her not to,” he pointed out.
Lawmakers, juries and the medical world have only begun to assess the possibilities. So for the moment, there is no solid ground or safe harbor for parties to medical app litigation. You are at the mercy of the courts, who are going to mold and shape case law as they go.
In the meantime, developers are cranking out apps at warp speed. We’ll not know what to expect, liability-wise, until we begin to see court judgements and jury awards that won’t materialize for at least another year.