[dropcap]I[/dropcap]n the US, medical malpractice is estimated at costing close to $35 billion per year and that the Kaiser Family Foundation report stated that close to $5 billion is paid in malpractice suits every year. Of course, about half of the money received actually goes to the attorney for the hours they put into the case to win for the injured person.
The problem is that developers of these apps may themselves become targets as they are the ones developing electronic health records and iPhone interfaces which could make them liable.
Not long ago, Information Week reported on the Electronic Frontier Foundations against the restriction of iPhone developer program license agreement. The reason being is that developers are not allowed to jailbreak iPhone, market apps via other app stores, or even reverse the engineer of any of the components of the software. Developers are also not allowed to talk about the agreement and was only presented to the public via the Freedom of Information Act that was requested by NASA that was released on an iPhone app.
The medical app has a clause that will place the responsibility on the developer in the case of any lawsuit and Apple will not be held responsible. This could be a huge problem for developers of medical apps.
The problem lies in that if the developer creates an app where clinicians go through a PALS algorithm and a mistake occurs in the app that causes a patient harm, the developer make be liable for part of the damage; however, if the app is classified as a medical tool then it will fall under the jurisdiction of the FDA along with federal regulations which will make the developer solely responsible for any damage. Apple has stated that they will not be held responsible and will not screen the apps during any part of the approval process. This means that many of the developers of medical apps including many of the larger companies may be forced out of business.
Overall, all physicians and healthcare facilities normally carry insurance in the case of a malpractice suit so the idea among many is that this new thought of making developers responsible will never occur or become targets in any suit. On the other hand, if Apple is named in a suit, the app developer will be held responsible for all of Apple’s legal fees due to their indemnification. It goes so far that if just a person instead of a company creates a medical app and a malpractice suit is placed on them, it could completely destroy them and they could lose their home and more.
