Restatement (Second) of Torts Section 324A: An Innovative Theory of Recovery for Patients Injured Through Use or Misuse of Health Care Information Services


Lisa L. Dahm


VOL. XIV • Fall 1995 • NO. 1 (table of contents)

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The author in this comment discusses how developments in information technology and widespread utilization of technology and software in the patient care context raise the issue of clinical liability for health care information systems vendors. The comment discusses a theory of recovery of tort damages for the negligence of health care information systems vendors under section 324A of the Restatement (Second) of Torts. Section 324A provides in essence that "one who undertakes ... for consideration, to render services to another which he should recognize as necessary for the protection of a third person ... is subject to liability to the third person for physical harm." The comment discusses the terminology specific to the computer industry and the types of disclaimers health care information systems vendors use in their contracts. The comment also analyzes the public policies for and against the use of section 324A as a theory of recovery for damages as a result of negligence by a health care information system vendors. The author opposes establishing any "bright-line" rule defining when a patient can obtain tort damages against a health information systems vendor. The author argues that the use strict liability against health information systems vendor for negligent acts could cause a chilling effect in advances in information technology. However, the author proposes that a patient should only recover damages against a health information systems vendor where the vendor purposely disregards the general health and well-being of the public.

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