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July 22 2009

Health Care Information Technology, Hospital Responsibilities, and Joint Commission Standards—Reply

JAMA. 2009;302(4):382-383. doi:10.1001/jama.2009.1042

In Reply: Dr Silverstein's letter adds context to our Commentary on HIT vendors' self-protective “hold harmless” clauses while introducing an important discussion about hospitals' and vendors' possible violations of Joint Commission standards. We agree with Silverstein about the misapplication of the standard business software contracting model. In our Commentary, we observed that HIT vendors' insertion of an additional defensive strategy, the “learned intermediary” clause, makes nondisclosure of IT-created errors particularly inappropriate. If a word processor garbled a paragraph and reordered several sentences, a user could send a screen image of that mangled page to anyone else. In contrast, if an electronic medical record randomized laboratory results, changed medication orders, and swapped patient identifications, the clinician would not be allowed to send that screen image even to fellow user-clinicians in other hospitals with the same vendor's electronic medical record software. Because serving each patient carries an outsized liability relative to other service industries, it is unfair to transfer complete liability for malfunctioning vendor HIT to clinicians and hospitals.

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