On August 2, 2013, the Office of the National Coordinator for Health IT (ONC) issued a notice to the provider community with guidelines for drafting contractual agreements for electronic health record (EHR) products and services.  The guide contains examples of EHR contracts, highlighting particular contractual provisions that providers should bear in mind—indemnification, confidentiality, warranties, liability, dispute resolution procedures, and termination clauses.  In particular, ONC notes that many EHR vendors draft contracts that hold customers (i.e., providers) responsible for all injuries including HIPAA breaches and medical malpractice claims that are caused by the EHR, even if the injuries are the result of bugs or other technical flaws inherent in the EHR product.  ONC’s guide recommends using mutual indemnification clauses, whereby each party assumes liability only for acts that it causes.

The guide is available by clicking here.

Reporter, Christopher Kenny, Washington, D.C., + 1 202 626 9253, ckenny@kslaw.com.