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Commentary |

Health Care Information Technology Vendors' “Hold Harmless” Clause Implications for Patients and Clinicians

Ross Koppel, PhD; David Kreda, BA
JAMA. 2009;301(12):1276-1278. doi:10.1001/jama.2009.398.
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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.

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The American Medical Association is accredited by the Accreditation Council for Continuing Medical Education to provide continuing medical education for physicians. The AMA designates this journal-based CME activity for a maximum of 1 AMA PRA Category 1 CreditTM per course. Physicians should claim only the credit commensurate with the extent of their participation in the activity. Physicians who complete the CME course and score at least 80% correct on the quiz are eligible for AMA PRA Category 1 CreditTM.
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