One important point about the 2008 Riegel vs. Medtronic decision is that it gave tech companies immunity from most state lawsuits, if their software is placed into a device.
But what if it isn't? Turns out it has immunity anyway.
The Journal of the American Medical Association, which has its own problems with criticism, has now published an editorial decrying the immunity, which is based on a doctrine called "learned intermediaries."
"Health IT vendors claim that, because they cannot practice medicine, clinicians should be accountable for identifying errors resulting from faulty software or hardware," he said in a press release.
"But errors or lack of clarity in HIT software can create serious, even deadly, risks to patients that clinicians cannot foresee."
In his article, Koppel and David Kreda, a Philadelphia software designer, offer examples of software bugs causing mistakes in drug administration, and failures to carry over warnings about drug allergies to the clinicians using them.
All this hit like a thunderclap for Scot Silverstein of Drexel, the health IT skeptic profiled here last month, who blogs at Healthcare Renewal under the nom de blog MedinformaticsMD.
Along with your patients you are nonconsented beta testers and experimental subjects of the health IT industry, and potential victims of the computer industry's arrogance and dysfunction.
Silverstein believes that legal threats are necessary to end the "mission hostile user experience" he finds so often.
So how about it? Think health IT vendors should be subject to the full market discipline of civil courts, as doctors and (still) drug companies are? Or would that destroy the industry?