I am weighing in on the recent flurry of activity on HIStalk regarding non-disclosure clauses in software agreements that preclude a customer from discussing or revealing problems with a vendor’s software.
Any worthwhile attorney reviewing agreements for a provider client should flag such an inclusion and require its deletion. Something like that should scream for attention to the savvy IT person, be it the CIO, the consultant, or the attorney.
Executives — when negotiating a contract, really think through the obligations. Where a clause requires education of your entire staff (such as telling them that they cannot disclose a serious software problem), just imagine giving that talk to your chief medical officer. If you find yourself not being able to defend or justify the offending term, you know what to do — get rid of it.
I cannot think of a more self-serving “requirement” in the paperwork that establishes the vendor-client relationship (some would say partnership). Imagine a high profile hospital negotiating with any vendor. The vendor is salivating, not just for the potential sale, but for the huge publicity it hopes to gain at some point by announcing that the high-profile hospital is running its software.
Certainly that vendor does not offer to keep secret the fact that the hospital runs its software in exchange for the hospital keeping errors or defects quiet. I personally find this offensive. I am not speaking for Meditech, but in speaking for myself, in the 20 years I spent negotiating tens of thousands of agreements for Meditech, I never once included such language in any agreement with any customer.
Imagine an ER physician who comes across a dangerous software malfunction. That physician may moonlight across town at another ER. Suppose that hospital has the same software vendor. Assuming the physician knows about the disclosure restriction (which is unlikely), you have placed the physician in a horrible situation. Should he or she abide by a software contract’s egregious terms and risk the health and safety of patients? Or, do what it is right (and required under the Hippocratic oath, I would say) and let the staff at the second hospital know about the software malfunction? In the more likely scenario, if the physician has no idea the restriction exists and divulges the existence of the problem, then the hospital is in breach of its agreement with the vendor.
Also consider the CIO, who you hopefully want collaborating with other CIOs on all things HIT related. You’re putting pressure on them as they sit at a table with other CIOs with the same software system, knowing this problem exists, but not being able (contractually) to divulge the information.
For a little perspective, let’s remember that the errors or malfunctions we are most concerned about are the ones directly involving patient care. A misaligned billing form does not rise to the level of concern as a bad dose amount. However, the non-disclosure terms do not differentiate, I am sure, in permitting disclosure of severe problems and restricting disclosure of minor ones. That makes no sense, which tends to enforce the assumption that the vendors using such restrictions wish to keep critical issues from the public because they fear the negative exposure that may result.
I say boo hoo. The vendor selected the market and designed the software. The vendor takes the profits. The vendor should stand behind its products, bad or good. The profit/loss reports do not differentiate. Neither should disclosures about software performance.
Just as a vendor should be proud of a good endorsement by any customer, so should the vendor permit free disclosure of serious problems. Not in a headline-grabbing, gossipy manner, but in a manner befitting this industry for the care of patients and avoidance of harm to those patients.
Providers should dust off their agreements and check to see if any such language is included. If so, call the vendor and demand an amendment deleting the provision. Better yet, vendors should be able to identify customers with such terms and do the right thing — provide the amendment without being asked.
William O’Toole is the founder of O’Toole Law Group of Duxbury, MA.