Malpractice concerns associated with mobile healthcare

While both smartphones and their apps are evolving at an exponential rate, medical malpractice case law simply is not.

Without significant precedent-setting cases in this area, the legal risk is more than a bit uncertain, and may be for some time to come.

FierceMobileHealthcare sat down with healthcare liability expert Joseph McMenamin, MD, JD, a partner with Richmond, Va.-based law firm McGuireWoods, to get his thoughts on some of the liability risks emerging from physicians' use of smartphones and smartphone apps in communicating clinically with patients. He recently tackled the issue in a commentary published by iMedicalApps.

FierceMobileHealthcare: If a doctor gives medical advice to a patient via email or text, is that problematic?

McMenamin: Well, there are two real [issues] here:

1) If the patient already has an established relationship with the physician, is there risk? Yes, just as there is if the physician takes a phone call over a standard land line. When the physician is asked a question of a professional nature, he's being called upon to make a professional judgment and to recommend a course of action to deal with the patient's problem. In the diagnostic effort or the recommended therapy, one could make a mistake. When there is the possibility of a mistake, that's where malpractice risk arises.

It's important to point out, though, that making a mistake doesn't necessarily mean malpractice. If "reasonably prudent" practitioners would have done the same under the same circumstances, then it's usually not considered malpractice. If the doctor's conduct was on par with his peers, then he has complied with the standard of care and isn't liable, in spite of an unfortunate outcome.

2) If there were not a prior relationship between the two, there is greater risk. If you're my doctor and I've been your patient, then I've been communicating with you about my condition. If we decide to engage in communication via smartphone, the communication isn't different, just the mechanism. I'm still telling you about my symptoms, and you're still giving me advice based on that information. Whether I was communicating with you via carrier pigeon...or by iPhone, it's still a doctor/patient relationship just like a face-to-face communications.

With a patient you don't have a relationship with, however, you don't have a great deal of history or information to help you figure out what my current problem is. Your job is now harder--and a harder job is one that's harder to do properly.

The answer also can depend upon state law. In some states, if you haven't examined the patient directly, or haven't met face to face, then the doctor/patient relationship hasn't come into existence. If that's true, it's arguably improper for you to be caring for him or her. Some states have specifically said that "care at a distance" violates the practice of medicine in that state.

Now, in an emergency, my advice would be the take the risk, because in those circumstances, it may well be better to care for the patient's urgent needs than not.

If [the problem] is elective, or non-urgent, though, that situation is dicier, and riskier. I would tell most physicians that if they wish to engage in clinical email, [they should] enforce a rule across the board that email won't be used in emergency situations. If patients think they have emergency, then get off the keyboard and call a clinician or go to the ER.

FMH: So if a patient sends an urgent text or email, the physician should urge them to go to the ER or an urgent care center?

McMenamin: From a lawyer's point of view, I would say that's exactly the right response. Don't try to manage an emergency by text. The practice of distance care is just too new and too potentially risky in these situations.

FMH: When using a smartphone app to obtain data, like glucose readings, can the doctor assume that the information is coming from his patient, or does he need to verify that?

McMenamin: You have to imagine that 99 percent of the time it's not going to be an issue, but it could be. Technologies do exist for making you certain that you're dealing with the right person. Physicians should ask the question [of app vendors]--"how can I verify that this is my patient?" With that said, the law will want to know if other doctors in your field use these technologies, and what measures they take to verify patient identity. If you've done as much as they have, then you've probably acted in a reasonable manner.

FMH: If a doctor recommends an app for a clinical purpose, does that constitute a prescription? Is he liable for the capability/accuracy, etc., of the app's findings?

McMenamin: In part, it depends upon what the doctor does or doesn't say. It's one thing to acquiesce to the patient's desire to use technology to manage their own condition. It's another to vouch for and promote a device to your patients. Physicians should be very leery of being perceived as advocates of one specific product or service.

And from a legal point of view, it's seldom wise to be the first kid on the block with a new toy. But neither is it wise to be the last kid on the block with that same toy. The law doesn't necessarily favor innovators.

I'd say, be cautious of the way you describe [any device's] capabilities. A cautious approach is probably wisest to diminish liability exposure.

For example, with insulin, which has been manufactured for decades, if something was wrong with the batch, and it has to do with how the drug was created or formulated, the doctor had nothing to do with that, or have any reason to.

With new technology, though, we don't have that kind of experience and history. You're, in some sense, vouching for not only the concept that electronic transmission of data would be beneficial, but also that transmission of data through this particular device would be helpful.

FMH: Should physicians treat smartphone apps like a new medication on the market in terms of how they describe it to, and use it with, patients?

McMenamin: I like that analogy. I think that would be wise.

This interview has been edited and condensed.

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