Yes Virginia, Software Can Be A Product
Summary
Take for example a case that we wrote on a couple of years ago, in which a district judge in Virginia granted summary judgment for the manufacturer of an electronic health records (“EHR”) system. Well, a couple of weeks ago, the Fourth Circuit reversed and held that the experts had very well identified a standard of care and further that there was evidence sufficient to support a failure-to-warn claim. Following surgery, the patient’s surgeon entered orders for “continuous pulse oximetry” into the EHR software developed by the defendant and deployed by the hospital. But the defendant’s EHR system undisputedly complied with IT Certification Program promulgated by the Office of the National Coordinator of Health Information Technology. As pointed out by a vigorous dissent, the hospital staff made “multiple lapses” that call into question whether correct orders from the surgeon would have even been obeyed.