According to a recent blog note by Mr. HIStalk, EMR vendors can't be held responsible for errors that creep into data reported by their systems to hospital physicians. Below is an excerpt from his note with boldface emphasis mine:
Penn researcher Ross Koppel’s new JAMA article concludes that healthcare IT vendors enjoy contractual and legal protections that keep them out of trouble even when their products cause patient harm. Anyone who has signed a vendor contract from either side of the table knows that vendors disclaim most responsibility, saying it’s the licensed user’s job to notice software or hardware errors and prevent them from harming patients (like when an allergy warning doesn’t display or a dose is calculated incorrectly). HIMSS unleashed a vindictive and wildly pro-vendor barrage against Ross in 2005 for daring to write an article describing patient harm that occurred with a hospital’s IT implementation, but I expect they’ve got bigger, multi-billion dollar fish to fry this time.
Here's a link to an abstract of the 2005 JAMA article. Also, here's a link to a 2005 reference describing the nature of the criticism leveled by HIMSS personnel against Koppel and referred to in Mr. HIStalk's note (see: When Technology Isn’t Always the Answer: A Case Against Computerized Order Entry):
Although Koppel offered suggestions for reducing the medication error risks inadvertently caused by CPOE systems, the University of Pennsylvania report was still met with criticism from proponents of CPOE systems, including the Healthcare Information and Management Systems Society (HIMSS), which asserted that the systems, when properly implemented, are extremely beneficial to the safety of health care. “The study points out some design problems that could cause confusion or error if they were present,” said Jonathan Teich, MD, Ph.D., chair of the HIMSS Patient Safety and Quality of Care Steering Committee. “However, almost all of the flaws that were mentioned in the research have been realized previously; remedies have been found and have appeared in published literature.” Joyce Sensemeir, RN, MS, HIMSS director of professional services, added that while the report can serve as a “cautionary tale” about what could go wrong, it should not be taken as the standard of what occurs with proper CPOE implementation.
I frankly can't see a practical way to hold EMR vendors responsible for errors that might crop up in hospital electronic records. I can therefore understand why these vendors include "hold harmless" clauses in their contracts. First of all, these companies would probably spend most of their time and resources in court litigating both valid and frivolous suits against them without such a contractual exemption. We all understand that healthcare is a litigious environment. Secondly, the performance of any EMR is a combination of the vendor product plus the various tables and settings established by the local hospital software support group. In most cases of erroneous results, it would probably be difficult to establish fault. Putting the onus for the quality of EMR results on hospital personnel seems to me to be placing responsibility on the proper group. I have published previous notes about how HIMSS operates largely as a trade association for healthcare IT companies (see: HIMSS Describes Itself as a "Trade Association" in a Press Release, Possible Adverse Consequences of Increased Federal Investment in HIT).