Academic journal article Journal of Corporation Law

How Technology Is Shifting Agency from Doctors to Patients: The Cost and Impact of Medical Technologies to Traditional Liability and Malpractice

Academic journal article Journal of Corporation Law

How Technology Is Shifting Agency from Doctors to Patients: The Cost and Impact of Medical Technologies to Traditional Liability and Malpractice

Article excerpt

I. INTRODUCTION                    609 II. BACKGROUND                     610       A. Telemedicine              610           1. Licensure             611           2. Privacy               611           3. Malpractice           612       B. Home Diagnostic Tools     613           1. Instruments           615           2. Tests                 616           3. Mobile Medical Apps   617 III. ANALYSIS                      618       A. Licensing                 619       B. Liability Concerns        619           1. Telemedicine          620           2. HDTs                  622 IV. RECOMMENDATION                 625 V. CONCLUSION                      628 


Modern medicine has long been the domain of physicians and been restricted to medical facilities. This is changing as technological advances have begun to alter conventional doctor-patient relationships and modern medicine. Recent innovations allow patients to remove hospitals from the process of diagnosis, and in increasingly common situations, even remove doctors. This Note examines how the application of new and old technologies in medicine affects the relationship of patients to the medical field, and the impact on liability. In Part II, this Note discusses the background of technological changes in the doctor-patient relationship by examining telemedicine and home diagnostic tools (HDTs). specifically, it discusses how medical tools have evolved and the different types of technology that reflect these changes. Part III analyzes how these changes alter current standards of liability. our understandings of liability law must adapt as technology redefines the actors and objects at the center of conventional liability suits. Finally, this Note will make recommendations to corporations regarding oversight and corporate responsibility in the manufacturing and distribution of new home medical technologies.


To appreciate emerging liability issues with advancing medical technologies, one must first understand how those technologies are changing. There are two specific technologies this Note will address: telemedicine and Home Diagnostic Tools (HDTs). By examining these technologies, we can recognize why they are changing both products liability and the medical field.

A. Telemedicine

Telemedicine is the use of technology to enable the "practice[] [of] medicine at a distance." (1) The Food and Drug Administration (FDA) provides a more technical definition. They describe "'telemedicine' as the delivery and provision of health care and consultative services to individual patients and the transmission of information related to care, over distance, using telecommunication technologies, and incorporating [] direct clinical, preventive, diagnostic, and therapeutic services and treatment...." (2) Telemedicine was initially used in difficult circumstances, such as offering care in deep-sea mining ships or military endeavors. (3) Telemedicine has expanded to the public sphere due through innovation and increased access to technology. (4) Telemedicine provides information to patients in an environment they control. Currently, 71% of medical practitioners are using telemedicine, primarily for diagnosis and patient monitoring. It is especially common in smaller medical practices. (5) Telemedicine has the potential to save $6 billion in annual healthcare costs for employers. (6)

The advantages of telemedicine are numerous, ranging from increased access of care to administrative ease. Telemedicine offers patients in remote areas increased access to health care and reduced cost of care. (7) It also offers better "utilization of specialist expertise, system coordination... and availability of patient records." (8) Because technology allows doctors to practice in remote areas, telemedicine creates a geographic displacement of health care while allowing professionals to "practice medicine in the normal manner." (9) This is because technology bridges the distance and allows doctors to collect and offer information without being physically present. …

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