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What is the role of technology in medical malpractice?


What is medical technology and what are the benefits?

Medical technology can be defined as the procedures, equipment, facilities, and organizational and supportive systems within which care is provided. From administrative advancements to novel surgical interventions, medical technology is rapidly changing the face of the healthcare industry.

There are various potential benefits of medical technology, one being less medication errors. Technologies such as computerized physician order entry, bar codes, and automated dispensers have been shown to reduce errors when medication is administered.

Automated medical filing and electronic health records can assist with/improve organization and legibility.

Remote patient monitoring technologies, such as smart watches, wearable fitness trackers, blood pressure monitors, and biosensors, can often measure one or more of the following functions: heart rate and pulse; heart rhythm; blood pressure; body temperature; physical activity; patient weight and BMI; calorie intake; sleep; exercise and fitness; body posture; and risk of falling. Access to this information enables treatment providers to manage a patient’s condition(s). For example, wearable electronic patches help cardiologists diagnose heart conditions, monitor heart disease progression, and administer medication. The device connects to the patient’s soft tissue to create a platform through which electronic feedback passes to capture data about the patient’s heart rate, blood oxygen levels, temperature, and blood pressure (BP) readings.

Telehealth and telemedicine have become increasingly in demand since the onset of the Covid-19 pandemic. These technologies can be advantageous to both patients and treatment providers. For patients, they can offer comfort, convenience, and be cost saving as they reduce travel expenses. For providers, they can reduce overhead expenses, lessen exposure to illness and infections, and improve response time.

Algorithms for diagnoses also have the potential of wide-reaching benefit. The medical world is constantly evolving with the discovery of new illnesses and treatments. Diagnostic algorithms can scan myriads of published medical journals, match a patient’s symptoms, and make diagnostic and therapeutic recommendations based on the results. These machine learning tools can also aid treatment providers with making proper referrals based on the diagnosis.

Does medical technology impact medical malpractice cases?

While medical technology can help reduce cases of negligence, it is not error-free. First, there can be manufacturer defects. In Wright Medical Technology Canada v. Taylor, 2015 NSCA 68 (CanLII), the Plaintiff commenced litigation against the Defendants, alleging negligence in the design and manufacture of a hip replacement transplant device which failed when its neck component fractured, necessitating replacement surgery two years later.

Second, Artificial Intelligence (AI) and cyber medical technologies come with cybersecurity risks. Data breaches can expose private, confidential patient information and also inadvertently lead to incorrect healthcare decisions. As mentioned above, treatment providers can rely on algorithms to make treatment decisions. If a breach results in data being deleted or altered, it can lead to wrong diagnoses or treatment plans.

Moreover, there is a human element to these automated systems – namely, learning to use and implement them. If treatment providers are not sufficiently trained in how to properly integrate digital health technologies before encountering such technologies in practice, there is a risk for medical error and subsequent medical malpractice liability. The following are examples of human-error with electronic health records:

  • The treatment provider did not check off the correct boxes when obtaining the patient’s history;
  • The treatment provider clicked delete instead of save when inputting information to the patient’s file;
  • The treatment provider failed to copy other responsible care providers;
  • The treatment provider reversed the day and month when inputting information to the patient’s file.

Take the following case example:

Presentation: A patient presented to an otolaryngologist for sinus complaints. The physician intended to order Flonase nasal spray. The patient took the medication as directed. Two weeks later, the patient went to the Emergency Department for dizziness.

Outcome: The Emergency Department physician discovered the patient was taking Flomax—a medication for enlarged prostate, one side effect of which is hypotension. The original ordering physician had entered “FLO” in the medication order screen, and the EHR automatically selected Flomax. Not noticing the error, the physician selected it.[1]

How do you sue for medical malpractice involving medical technology?

If you are injured by medical technology, either directly or indirectly (i.e. by human error), you may be entitled to compensation. The burden of proof is on the Plaintiff to prove that the technology itself and/or the medical professional(s) using the technology provided negligent medical care and treatment, on a balance of probabilities. The parties responsible are case-specific. For example, if you are injured by medical technology while receiving care in a hospital setting, the negligent parties may include the hospital, the medical professional contracted to work for the hospital that used the technology, and/or the technology’s manufacturer, distributor, and retailer.

Meeting the burden of proof in the context of digital health can be challenging with novel questions to be determined. For example, when is it safe to offer digital first solutions for disease management? What are the accepted norms for obtaining a patient’s history and conducting an examination during a telehealth consult? How should these be documented on electronic systems? The rapidly growing use of medical technologies will bring these nuanced issues to the forefront.

Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. We have the confidence and skill to advance your medical malpractice claim to settlement or trial while helping you navigate the complex medical, legal, and insurance issues.

Our experience, commitment to excellence, and reputation have long been recognized. Our founding partner, Richard M. Bogoroch, has been recognized as a leading personal injury lawyer by The Canadian Legal Lexpert Directory and by The Best Lawyers in Canada. The Canadian Legal Lexpert Directory and The Best Lawyers in Canada are two highly regarded lawyer rating publications.

If you or your loved one believes that you are a victim of medical malpractice or negligence, reach out to a medical malpractice lawyer to understand if you have a claim. Please contact us at Bogoroch & Associates LLP for a free consultation.


What is the role of technology in medical malpractice?
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What is the role of technology in medical malpractice?
Learn about the benefits of medical technology and its potential connection to medical malpractice cases.
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Bogoroch & Associates LLP
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