In thinking further about the "hold harmless" and "defects gag clause" originated by Health IT vendors and agreed to by hospital executives as I described at Have Hospital Executives Violated Their Fiduciary Responsibilities by Signing Such Contracts?, I can state I feel a sense of (past) betrayal.
Only now thanks to a Penn sociologist and a software consultant (plus the fortitude of JAMA, under some criticisms recently on other matters, in publishing this article) do we formally find out that hospitals have been literally "dumping" on physicians by signing contracts with the HIT vendors leaving the docs "holding the bag" for software errors and malfunctions, and gagging their organizations from openly talking about defects and problems. In other words, physicians hold the risk, everyone else holds the money.
Actually, since EMR mostly benefits the payers, I'd more correctly say hospital administrations have largely sold physicians down the river, an act that echoes of contempt and betrayal let alone breach of fiduciary responsibility and the Joint Commission standards I believe apply as in the post linked above.
It's not as if hospital administrations cannot negotiate these issues, nor are they forced to sign such provisions if vendors refuse to negotiate. They could send such vendors out the door. If this had been done as a routine by hospital executives, the health IT vendors would have been forced to give in years ago. Health IT was and is not mandatory for operations; the latest survey in NEJM indicates only ~9% of hospitals are using EMRs.
I also believe possible claims of ignorance and/or "we didn't read the fine print" don't fly. Hospital execs have the responsibility and duty to research such issues and read the fine print, or at the very least counsel did. In effect, at best the spinelessness of hospital administrations over the years may have spoiled the vendors to expect such concessions. (One also wonders about special "incentives" that might make hospital administrations weaker than they might otherwise be on such issues.)
Now I better understand perhaps why as CMIO/Director of Informatics at Christiana Care Health System in the late 1990's I never got to see the HIT contracts. I likely would have been a lot less eager to try to "sell" the EMR idea to the medical staff if I had been aware of the "vendor held harmless" provisions they faced if a software design problem or glitch in these immensely complex devices contributed to patient harm. I also feel betrayed in my CMIO role by not being informed of these contract provisions.
I wonder how many former and present CMIO's out there are now thinking along the same lines.
Ironically, as a Group Director at Merck Research Labs two years later I did review my department's informatics contracts, in fact I was required to, all several million dollars' worth, and in fact was involved in vendor negotiations (I had a personal grant of authority of $100,000 for smaller contracts). Pharma truly reveals hospitals for the IT backwater they are.
Finally, there appears to be a mainstream media boycott of the Koppel/Kreda article. As of 1:30 PM EST March 26, Google news shows almost no coverage except JAMA, ZDNet and Fox Business News. With Google web search, I find mostly copies of the U. Penn press release, and links to a few blogs, including this one.
I've previously noted this fascinating, Google-revealed phenomena about media noncoverage of politically inconvenient stories.
I've contacted the WSJ who printed my editorial letter on Health IT last month. Perhaps they'll get the scoop on the issues raised by Koppel and Kreda.
-- SS
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