• If a Digital Health App Makes a Mistake, Can You Sue?

    Digital Health AppDo you have a digital health app installed on your smartphone or tablet? If so, you’re not alone. Mobile technology has become a central focus in such diverse needs as weight loss, diabetes prevention, mental health and patient compliance, and it was estimated that by the end of 2017 more than 50 percent of smartphone users would have at least one app installed. At last count, there were over 318,000 digital health apps available. Though the goal of all of them is higher quality care, some have better designs than others. This raises the question of what happens if a user relies on a digital health app and it makes a mistake that leads to an injury. Can the injured user file a product liability lawsuit?

    The answer to that question is entirely unclear, and in large part, this is since product liability laws have not kept up with the ever-changing technology landscape. Though the apps are increasingly being used by consumers and in some cases even recommended by clinicians and health systems, there have been no laws put in place to specifically address what happens if people rely on the app for a diagnosis and end up delaying treatment or treating incorrectly.

    There is a real risk of injury, and even of death in situations where incorrect diagnostic or medical information is provided by a digital health app, yet at the same time there are questions as to exactly who the consumer could hold responsible if they were to suffer this type of injury. Though the most immediate thought may go to medical malpractice, it is unlikely that a plaintiff could establish one of the required elements of that type of lawsuit – a relationship between themselves and a provider – when using an app. So instead the question goes to product liability. Even in cases where patients are relying on a smartphone app to control a medical device prescribed by their physician, if the app malfunctions or the controlling message is not accurately transmitted, would the software designer be responsible, the device manufacturer or the smartphone manufacturer? What happens if the consumer has not updated the app?

    The general thinking is that the ability to pursue a product liability lawsuit against a digital health app will not be settled law for a while, but this should not prevent those who are injured from speaking with an attorney to see what their rights may be. If this type of injury has befallen you or someone you love, contact us to set up a consultation to discuss your options.

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