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AMIA: Why The “Hold Harmless” Clause In EMR Contracts Is Unethical

Last Friday the board of the American Medical Informatics Association (AMIA) published a position paper in its journal saying that the “hold harmless” clause is unethical. One of the paper’s authors is Dr. Danny Sands, currently President of the Society for Participatory Medicine. I hope to write more about it this week, after attending the AMIA conference in DC, but here’s the basic issue:

– For ages, makers of electronic medical record systems (EMR) have insisted on a “hold harmless” clause in the contracts a system buyer must sign. It says, in essence, that if any harm comes to anyone because of a system problem, the buyer (the hospital) will hold the manufacturer harmless.

– In other words, if anything goes wrong with the system and someone gets hurt, it’s not the manufacturer’s fault. The reasoning has been: “Hey, you doctors are smart. If our system displays a wrong value, you’re supposed to notice it.”

I’m told this policy has been one big impediment to adoption of EMR systems, because it removes all motivation for vendors to fix things that make their product hard to use: If there’s a bug or the system slows someone down, and a patient gets hurt, the hospital gets sued, not the vendor.

If you were a hospital, wouldn’t that make you eager to buy? What would that do to your trust of the vendor? Patients, how do you feel about that? Providers?

This came up repeatedly during the “Meaningful Use” meetings I attended last winter. I wrote about it in “What to do about the cream of the crap?” Those strong words were how an unhappy buyer described the system they’d just chosen. That post links to a video of a lecture last December by Ross Koppel of the U of Pennsylvania, another author of the AMIA paper. Trust me, if you aren’t yet familiar with how ghastly some EMR systems are, this 30-minute lecture (and 30-minute Q&A) will take you to school quick.

The “hold harmless” clause has also been an immense impediment to improving the quality of software. Imagine if no matter how badly you did your job, you were legally not responsible. Better, think about that schlumpf down the hall — imagine if he or she was not responsible for errors in his or her work.

Last spring as the “Meaningful Use” rules were being written, there was talk of mandating that vendors have to make their systems usable for providers in a harried hospital environment. According to rumor, an industry executive said: “Over my dead body.” Very funny, making my nurses and doctors use crappy, buggy software. So when I spoke in June at the Agency for Healthcare Research & Quality (AHRQ), I titled my talk “Over My Dead Body: Why Reliable Systems Matter to Patients.”

Thanks to the AMIA board for standing up for quality, and thanks to Dr. Sands, Ross Koppel, and the others who wrote the paper. It doesn’t have the force of law, but let’s hope it moves things in the right direction — for the benefit of the patients — and yes, I mean your mother, your child, your best friend. Our providers need tools that serve them well in serving us.

*This blog post was originally published at e-Patients.net*


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One Response to “AMIA: Why The “Hold Harmless” Clause In EMR Contracts Is Unethical”

  1. Good idea! Let’s extend the ‘hold harmless’ clause to medical care!

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