The phenomenon of prospective patients consulting Dr Google as well as (and perhaps sometimes instead of) their local GP is well known. Patients are also increasingly turning to smartphone applications for healthcare information and services. A search of Apple’s app store for the term ‘medical’ gives over 4000 results including ‘Prognosis: Your Diagnosis” and “Quick Medical Diagnosis and Treatment”.
CNN’s ‘top ten’ health apps include a stress level monitor and an alarm that monitors your sleep cycles and wakes you up during the lightest phase. There are apps to remind patients when to take their medicine and when to exercise and even apps that (with a little additional equipment) constantly monitor blood pressure or blood sugar levels. A number of apps even offer assistance in identifying melanoma1.
Many of these programs (or future versions of them) will offer significant benefits for patient health. However, the more patients rely upon and trust such technology, the more likely it is that they will seek to make the creators liable if they perceive that it has instead caused them harm.
Technically there is no barrier to such a liability arising. It is certainly foreseeable that a person might suffer injury if a computer program offered them an incorrect diagnosis, and a court would expect the creator of such software to take reasonable care in creating the software. Given the potential consequences, the required standard of care is likely to be high.
There are however a number of factors that reduce the likelihood of such a claim. Manufacturers of medical apps include disclaimers that users must accept before using the product. However such disclaimers will not necessarily provide protection against causes of action under Australian consumer protection laws.
Courts may also (at least for now) take the view that a reasonable person will take some care in relying upon a $5 program they downloaded off the internet for any serious or potentially serious medical condition. In many cases, a would-be plaintiff will face significant difficulties with respect to causation.
However, any judicial reluctance to attribute liability to an app developer or retailer may diminish as mobile medical applications and similar technology becomes increasingly sophisticated.
With the increasingly widespread use of technology in this area, it seems likely that it is only a matter of time before a court is asked to determine the potential liability of a manufacturer of a medical application.