Health IT, Hospitals

‘Gag clauses’ in EHR contracts said to bar safety reports

Physicians, hospitals and healthcare systems often are contractually barred from reporting on software glitches and other shortfalls in their EHRs that could lead to harmful or fatal medical errors, according to a newly published investigation.

Physicians, hospitals and healthcare systems often are contractually barred from reporting on software glitches and other shortfalls in their electronic health records that could lead to harmful or fatal medical errors, according to a Politico investigation.

“Most of them are under gag orders not to discuss the specific failings of their systems — even though poor technology in hospitals can have lethal consequences,” Politico’s Darius Tahir reported Friday.

The inside-the-Beltway publication obtained 11 contracts from healthcare providers in three states, covering six major health IT vendors: Epic Systems, Cerner, Siemens Health Services (which Cerner bought earlier this year), Allscripts Healthcare Solutions, eClinicalWorks and Meditech. All but one of the contracts examined “contains a clause protecting potentially large swaths of information from public exposure,” Politico said.

According to some critics of EHR vendors that Politico spoke to, gag clauses hamper research into EHR and patient safety. While the vendors said the language is mostly to protect intellectual property, others strongly disagreed.

“The insiders tell me it’s the confidentiality and intellectual property clauses [that] are the biggest barriers to reporting adverse events,” Dr. David Classen, co-author of a 2011 Institute of Medicine report on health IT safety problems.

According to the article, a contract between the Los Angeles County Department of Health Services and Cerner is typical in defining confidential information as “source code, prices, trade secrets, mask works, databases, designs and techniques, models, displays and manuals.” This language discourages reporting, according to the corporate counsel at a large New England health system.

And even though the federal government has spent $30 billion subsidizing EHR purchases through the Meaningful Use program, the Office of the National Coordinator for Health Information Technology is powerless to force more transparency. The Health IT Safety Center — a.k.a. the Safety Collaboratory — that ONC is setting up seems to be ignoring the IOM recommendation to make error reporting mandatory.

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