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Last week the American Medical Informatics Association (AMIA) released a position paper titled
“Challenges in ethics, safety, best practices, and oversight regarding HIT vendors, their customers, and patients: a report of an AMIA special task force.” The paper shines a bright light on the alleged contracting practices of EHR vendors and their notorious “hold harmless” clauses, which indemnify the EHR vendor from all liability due to software defects, including liability for personal injury and death of patients. What this means in plain English is that if a software “bug” or incompetency caused an adverse event, and if you (or your hospital) are faced with a malpractice suit, the EHR vendor cannot be named a co-defendant in that suit and you cannot turn around and bring suit against the vendor for failure to deliver a properly functioning product.
The AMIA paper also asserts the existence of contractual terms preventing users and purchasers from publicly reporting, or even mentioning, software defects, including ones that may endanger patient safety. The AMIA report goes on to challenge the ethics of both buyers and sellers engaging in such contracts, with an emphasis on the EHR vendors’ primary responsibility to shareholders and the bottom line in general.
As expected, the authors call for Government regulation of HIT products and processes and suggest that contracts should, of course, reflect a shared responsibility between vendors and customers and while public reporting should be allowed (or required) for certain types of software defects, users should be mindful of the vendor’s intellectual property. The interesting portion of the report is the rather novel recommendation for formal Ethics education amongst vendors and purchasers. Presumably, vendors and their customers need to be taught the difference between right and wrong and need to be informed that placing corporate profits (or personal comfort) ahead of patient safety is indeed wrong and therefore unethical. To borrow from the Windows 7 phone commercials, “Really?”
