Institutional Liability in the E-Health Era
Canadian Journal of Law and Technology, Vol. 9, Issue 1, 2011
32 Pages Posted: 18 Aug 2011 Last revised: 22 Feb 2014
Date Written: September 6, 2011
This paper discusses the liability of health care organizations for certain classes of medical error. We argue that the existing jurisprudence is outdated, containing numerous assumptions that have been rendered obsolete by the advent of electronic health information technologies. The use of information and communication technology in the health care domain has profound implications for health care organizations, health care professionals and patients. Among other effects seldom discussed in the literature, these technologies can alter the way in which health care professionals conduct their activities and exercise judgment. Responsibility for system-level errors arising from these technologies should not be attributed to individual health care professionals, as control over the technology effectively lies with either the health care organization, or higher level entities such as standards bodies or government agencies. As a result, we believe that the existing jurisprudence on liability must be reconsidered, as it has been outpaced by developments in technology and systems engineering. Since systems level errors will become more commonplace, we believe that hospitals and government agencies should no longer be absolved of responsibility in this context.
Keywords: ehealth, health law, vicarious liability, duties of institutions, medical malpractice, healthcare ict
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