When the Machine that Goes Ping Causes Harm: Default Torts Rules and Technologically-Mediated Health Care Injuries

Abstract

It is widely expected that the growth of technologically-mediated care will directly reduce medical error and have positive indirect effects such as improving the data sets that underlie peer review, state disciplinary oversight and medical malpractice litigation. A technologically-mediated health care delivery system also should deliver substantial reductions in information costs for consumers, improving choice as to both quality and safety. What seems less clear is the extent to which process re-engineering and conversion to technology-centered error reduction systems will itself will create a new set of quality of care externalities. This article explores some of the liability questions posed by increasing the technology component in health care delivery. First, I take the position that the process and technology reforms triggered by To Err Is Human inevitably will confirm institutional liability as the default position for modern malpractice claims. Second, I argue that the likely adverse event scenarios that will result from technologically-mediated diagnosis, treatment and care will severely test our current torts operational rules, particularly those that lie at the intersection of malpractice and products liability.