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Health apps on a slippery legal slope

ADRIAN LOWE June 12, 2012

Medical and fitness experts are worried about increasing reliance on smartphone and tablet apps for health and fitness advice, in the same way many rely on a ''Google diagnosis'' for health problems.

A senior medical negligence lawyer says app creators and distributors can be sued if something goes wrong in the same way as manufacturers and distributors of drugs or medical devices.

While many apps in medical, health and fitness categories appear to work well, experts are concerned that some do not take personal circumstances into account and could be misused.

Mark Brown, Sports Medicine Australia's Queensland branch executive officer, said it was worrying to see an increasing reliance on apps and the internet to guide diagnosis of conditions and how to exercise.

''Most people, leaving your financial status aside, understand that if you want to look after your teeth, you should have a regular dental check and there's never going to be an app that can fix your teeth. However, they'll go to the net and get advice on what they should do for symptoms which could be anything from minor muscle strain to incipient heart disease and they'll trust their $3 app, so it seems to be a false economy,'' he said.

Australian Medical Association president Steve Hambleton said while smartphone apps were ''on the threshold of being really helpful'' for medical practitioners, there were still many risks for patients.

Among these, he said, were taking testimonials literally and failing to remember that results were not similar for all. ''Just because it works for someone doesn't mean it works for you. The levels of evidence is the other thing that people don't understand,'' Dr Hambleton said. ''Anecdotes are not evidence. Testimonials are not evidence and the more testimonials you get, it doesn't make that 'evidence' any stronger.

''There's no computer made that can actually match the training that a medical practitioner can get because there's so many non-verbals that you can't feed in to the computer.

''Seeing a patient walk in the door, knowing them longitudinally, taking a history … monitoring over time is how a diagnosis is made.''

Law firm Slater and Gordon's national practice group leader of medical law, Bill Madden, said although there had not yet been any cases alleging medical negligence from apps in Australia or England, there was no reason why there could not be. He said app distributors and producers were in the same position as drug and medical product manufacturers and distributors in a negligence case, but warned that distributors would be expected to have broad indemnity clauses that would attempt to not hold them liable for misuse or injury.

Apple, which, through its App Store, is the largest distributor of apps in Australia, would not comment on whether it requires app producers to test their products before release, or about its terms and conditions.

A recent study from Brigham Young University in the United States found that many health or medical apps did not include features that would change behaviour - and that practitioners who wanted to recommend patients use apps should use discretion when doing so.

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