Mobile technology brings equal parts risk, reward to medical liability

Mobile technology, and its ability to provide rapid access to medical information, can be good and bad for providers' medical liability risk. That's the upshot of Harvard health law professor Michelle Mello's presentation at the World Congress Leadership Summit on mHealth from Thursday.

"The landscape for medical liability with these technologies are varied and textured," Mello (pictured) said. In particular, they can increase risk if physicians:

Rely too heavily on remote exams, diagnostic apps, or email advice about patient care. The availability of technological shortcuts could tempt some providers to be less thorough, Mello said.

Choose not to see patients in person when they should. For example, if there's a question about some remote- or mobile-delivered information, and the physician doesn't have the patient come in for a visit, "that might be considered negligent in some circumstances," Mello said. Her guidance: If there's a "shadow of a doubt" that an in-person visit would provide needed information, physicians should meet with the patient.
Rely on previously recorded patient histories or test results. Some physicians might choose to use a previous week's physical findings, rather than gathering fresh data, Mello explained. One particularly bad habit to watch for in this regard is clinicians using cut-and-paste functions to copy older information into their own visit notes. It "looks really bad in court," Mello said. 

Fail to respond to emails in a timely way. Patients develop expectations for quick turnaround, and can get dissatisfied--and are far more likely to sue--if providers don't immediately respond to their email questions. Another liability risk arises when physicians have lower-level staff members respond to patients' email requests, rather than evaluating the information themselves, Mello said.
Miss key information due to information overload. Mobile connectivity to not only internal patient records, but also records from partner organizations, PHRs, and other sources can be overwhelming for physicians, and cause them to overlook important details. "As the overall amount of information increases, so does the chance that something important may be missed," Mello said.

Create more documentation of clinical decisions and activity, which equals more discoverable evidence in court.  

Fail to document departures from clinical decision support (CDS) guidelines. Some apps provide CDS and even recommend a course of action or treatment. If a physician chooses another method, he or she should clearly explain why they deviated from the apps' recommendations. It's not that physicians can't make different treatment choices, but keep in mind that it's something a plaintiff very well could hold up as proof of negligence. In that case, "the onus will be on the providers to justify and explain their reason for not following the CDS algorithm," Mello said.

There are also ways that mobile technologies can reduce providers' liability risk, as well, according to Mello, including:

Widening providers' access to patient information, which can prevent errors and problems in the first place.

Improving communications between providers and their patients. While a few providers may not respond in a timely way, most providers use mobile messaging, email and other technologies to bolster patient communications, Mello said.

Improving outcomes by following CDS guidelines. Again, there is a risk associated with not following CDS, but well-crafted CDS apps can improve providers' quality of care, standardize that care and reduce treatment errors.

Driving patient satisfaction. "There is a large swath of patients who really like being able to talk to their physicians by email," Mello said. "And there are doctors who take the time to compose thoughtful, sympathetic emails to patients." The improved patient satisfaction that results can reduce the risk that patients will sue.

Supporting doctors' ability to defend against claims. While documentation can reveal mistakes or be used against physicians, it also can be used in their favor, according to Mello. Mobile technologies help to document the activity and actions being taken at the patient's bedside, which can "eliminate the 'he-said,' 'she-said' nature of some liability litigation," Mello said.