By: Joseph McMenamin, MD, JD
[Ed. We are excited to present this guest post by Dr. McMenamin, who was a practicing emergency physician before turning his sights to the practice of law. He is currently a partner at McGuireWoods LLP specializing in health-related litigation.]
A medical malpractice plaintiff must meet four tests: a duty, breach of that duty, causation (the “so what?” question), and damages. A failure to prove any one of these elements is fatal to the plaintiff’s case. In mHealth, the most complex of these may be the one that, in conventional care, is the simplest: duty.
In most health care, it’s usually pretty clear when I am your doctor and you are my patient. Once that’s established, I owe you a duty - a duty that, if breached to your detriment, you can sue over. We may disagree about the extent of that duty, and whether, on the occasion in question, I complied with it, but the existence of the duty itself is often non-debatable. Either I’m your doctor or I’m not.
Suppose, though, I maintain a Web site dedicated to a discussion of the diagnosis and treatment of lupus, and some of the information presented is out-of-date. Can a reader claim that, in reliance upon my Web site, he was harmed, and is thus entitled to compensation? If I write a blog to discuss medical topics, does my reader become my patient? What if, in conformity with the 140-character limitation imposed by Twitter, I omit a discussion of subtleties that in a conventional medical text would be spread over 3 or 4 pages of dense print? In general, if no doctor-patient relationship exists between my reader and me, I cannot breach the standard of care; if one does, I can. The question thus becomes: when does that relationship arise?