Health Care Information Technology Vendors' “Hold Harmless” Clause
Implications for Patients and Clinicians
- Ross Koppel, PhD;
- David Kreda, BA
- Author Affiliations: Department of Sociology and Center for Clinical Epidemiology and Biostatistics, School of Medicine, University of Pennsylvania, Philadelphia (Dr Koppel); and Social Research Corporation, Wyncote, Pennsylvania (Mr Kreda).
Since this article does not have an abstract, we have provided the first 150 words of the full text.
- KEYWORDS:
- COMMERCE
- INFORMATION SYSTEMS
- LIABILITY, LEGAL
Health care information technology (HIT) vendors enjoy a contractual and legal structure that renders them virtually liability free—“hold harmless” is the term of art—even when their proprietary products may be implicated in adverse events involving patients. This contractual and legal device shifts liability and remedial burdens to physicians, nurses, hospitals, and clinics, even when these HIT users are strictly following vendor instructions. Vendors avoid liability by relying on the legal doctrine known as “learned intermediaries” and on warranties prohibiting claims against their own products' fitness. According to this doctrine and legal language, HIT vendors are not responsible for errors their systems introduce in patient treatment, because physicians, nurses, pharmacists, and health care technicians should be able to identify—and correct—any errors generated by software faults.
Learned intermediaries are considered medical experts who, through education, experience, or both, are able to balance the benefits of any medication, dosage, software, or medical device …
