More and more patients these days are seeing their physician pull out an iPhone or iPad to look up drug dosing information, review lab and radiology data, or help teach them more about their medical condition. And as developers, and the increasing number of physician-developers, continue to find more creative ways to bring medical resources to the point of care, we can certainly expect smartphone platforms and medical apps to become pervasive at the bedside. However, just as healthcare providers and patients are noticing this trend, there are number of others who are paying attention as well – for WebMD, one of the largest companies in this industry, it is the lawyers who may be watching that are worrisome.
As they put it in their annual statement to the SEC,
If our content, or content we obtain from third parties, contains inaccuracies, it is possible that consumers, employees, health plan members or others may sue us for various causes of action.
We’ve talked in the past about potential liability issues for healthcare providers using medical apps and the developers who produce them, as well as similar issues related to electronic health records. The fact that WebMD found the issue significant enough to report it to the SEC and their investors clearly indicates the issue is still unresolved and the remainder of their statement adds some further interesting perspective.
If you’ve used a medical app, you’ve seen the disclaimers that go along with them – its a bit like trying to read the Magna Carta in its original Latin. To most of us, it seems as though something that complex and detailed should be pretty protective. But as WebMD notes,
Although our Websites and mobile applications contain terms and conditions, including disclaimers of liability, that are intended to reduce or eliminate our liability, the law governing the validity and enforceability of online agreements and other electronic transactions is evolving. We could be subject to claims by third parties that our online agreements with consumers and physicians that provide the terms and conditions for use of our public or private portals or mobile applications are unenforceable.
In short, these disclaimers could be determined to be meaningless and thus expose app developers to liability for inaccuracy in their products. Now as we’ve noted in the past, it would be hard to imagine the publisher of Harrison’s being held liable for harm that occurred as a result of an error in a new edition. Similarly, it’s hard to imagine that Medscape would be held liable for an error in its app that resulted in harm. However, we’re not nearly as imaginative as our friends in the legal world. And in any case, as the folks at WebMD point out,
Even if potential claims do not result in liability to us, investigating and defending against these claims could be expensive and time consuming and could divert management’s attention away from our operations. In addition, our business is based on establishing the reputation of our portals as trustworthy and dependable sources of healthcare information. Allegations of impropriety or inaccuracy, even if unfounded, could harm our reputation and business.
There are clearly a lot of unanswered questions in the area of medical apps, as often happens in an emerging industry. As we reported earlier this week, the FDA has now announced plans to review regulation of medical apps. So at least hopefully some answers to these questions are on their way.