Analysing the Liability of Digital Medical Platforms for Medical Negligence by Doctors
Debayan Bhattacharya*
Volume 15 Issue 2 (2022)
Medical platforms have witnessed a massive rise since the beginning of the COVID-19 pandemic. In order to introduce clarity and certainty to the field of telemedicine, the Telemedicine Practice Guidelines were introduced. While it has addressed liability in different respects, the question of platform liability for the negligence of doctors remains unanswered. Liability for a doctor’s negligence can be considered under both tort law and intermediary regulation. Under tort law, the standard test for vicarious liability is when there is an employer-employee relationship. However, courts have modified this test in the context of hospitals and now hold commercial hospitals vicariously liable for all negligence of their doctors. If this test is extended to medical platforms, it will lead to unreasonable over-regulation by holding all platforms liable. This paper suggests a three-part framework to assess the liability of these platforms under tort law that is fair and equitable. Under intermediary liability, the plain application of the law results in no liability for any medical platform. While this is a reasonable outcome, it highlights the lack of certainty in regulating medical platforms. To ensure that innovation is not stifled, this paper argues that liability of such platforms should be clarified.