Liability and the health librarian

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Contents

Last Update

  • Updated.jpg 2 April 2014

Introduction

See also Blogging and the law | Ethics and the health librarian | Information needs of users | Information technology topics | Web 2.0

"...as information professionals, many have wondered about potential liability if a patron were to use library resources to access content and then harmed someone with the knowledge that they had obtained from that source..." — Healey, 2008

Liability and the health librarian refers to the legal liability that health and medical librarians may face in providing reference and information services to their users. Although very few health librarians have ever been held liable for information they have provided, the legal issues that arise in this area of the law are contracts and torts. Being held liable for providing unprofessional information services (negligent misinformation) is a topic of interest in the library literature – but what steps can be taken to reduce legal risks? Some other important questions for health librarians:

  1. How do health librarians educate users of health information to exercise due diligence with information?
  2. Further, how we we educate consumers not to make any health-related decisions based on information we provide?
  3. Is consumer reliance to find (and understand) the best medical evidence a reasonable expectation?
  4. How should patients and family members verify information with their health team? i.e., in-person OR online?

In contract law, one of the recurring questions is whether interactions with users suggest an implied contract; does the implied contract occur automatically in fee-for-service models? In fee-based services, are health librarians obligated to provide information that will stand up to scrutiny in a legal setting? Exclusion clauses are used by some hospital libraries to exclude liability, but their validity is doubtful, according to experts. Adhering to good professional practices, and avoiding dispensing advice or interpreting health information for patients, will help to minimize liability. Another protection is to remind consumers or patients to check all health information provided by the library with their health provider or clinical team.

One of the most disturbing cases of information liability in recent memory occurred at Johns Hopkins in 2001. A healthy volunteer died from inhaling hexamethonium as part of a study. The researchers assumed that the chemical was not toxic, and they based their assumptions on literature reviews that were incomplete. The U.S. government suspended research contracts and grants involving human subjects at Johns Hopkins for a time. The U.S. Medical Library Association (MLA) seized the opportunity to say that, had the researchers consulted a qualified medical librarian, this mistake would probably not have happened.

Information malpractice

Health librarians do not seem to be especially susceptible to malpractice but it is nonetheless important to be aware of the dangers. Strictly speaking, information malpractice means the occurence of any professional conduct that shows blatant disregard (or negligence) and a lack of duty of care. Duty of care is covered by torts under “vicarious liability” - a civil wrongdoing independent of breach of contract. A brief description of liability as it pertains to health librarians and other information professionals is worth sharing with you.

To prove liability, a case must be made that an individual's actions derived from negligent behaviour. This negligence is viewed as deriving from four main parts of law:

  • lack of reasonable duty of care
  • serious breach of duty
  • actions that caused the problem
  • actions that led to harm of clients

Duty of care occurs where a tangible loss or injury to someone is considered a distinct possibility and actions are taken to avoid it. DoC carries the expectation that any reasonable professional person would take action against exposing someone to any unreasonable risks. A concomitant standard of care is defined as what a reasonably prudent person would do in similar circumstances. Someone may be judged as careless according to a breach of duty regardless of his or her intentions.

The remaining issue is straightforward. There must be actual harm personally or financially for a malpractice suit to be brought against someone. The court must see that the information professional was the cause of harm and is responsible for damages.

Implications for library policies

Liability and ‘social media talk’

...Internet defamation is becoming more common due to the increasing ability of internet users to post comments online. Blogs, message boards, instant messaging services, and social media sites, such as Facebook and Twitter, all allow every day internet users to publish their views on a variety of people and subjects. As a result, internet defamation commonly occurs from defamatory material being posted on various message boards or websites ..."'
  • The law of defamation has developed historically to safeguard reputations. Defamation is an act exposing others to ridicule and is more harmful than a joke, exaggeration or satire. In legal terms, a false or disparaging comment about someone is considered defamatory. Innuendo can also be ruled by courts as defamatory. If what you are writing in a social media space (be it yours or someone else’s) causes any emotional distress or injury to someone’s dignity or reputation, a statement of claim can be filed against you. In most jurisdictions, a civil case can be easily resolved (or mitigated) if you publish an honest retraction and apologize to the affected individual. A good rule of thumb for anyone who wants to air their personal or professional grievances on the web is to reflect on the potential outcomes before they go public. If you behave civilly, you will make friends, build a helpful network of contacts and your activities you will never get you into trouble. Another caveat is to remember that what you say on the web is stored forever. As a result, choosing your words carefully when posting comments on blogs is as important as the principle of doing no harm (“primum non nocere = first, do no harm”) is in health care.

Disclaimers

  • No warranties, implied or actual, are granted for any health or medical information used while in this library
  • The library and information service grants no warranties of any kind, expressed, implied or statutory
  • Information provided is believed to be accurate, but is not warranteed and subject to verification
  • The library and information service disclaims any implied warranties of accuracy
  • The library and information service will not be liable in any way including but not limited to errors or omissions in any information sources
  • There is no warranty that this information or efforts of the librarian will fulfill your particular purposes or needs
  • Except for warranties stated, this information is provided with all faults, and the entire risk as to satisfactory quality, performance, accuracy is with the user.
  • Special warnings for special searches: medical, legal, etc.
  • Health librarians (or information professionals) are not medical people and consumers should consult their health providers to assist in interpreting any information
  • The search results are provided for information and educational purposes only. For ________ advice, you should see a ______ professional.
  • Disclaimer: The HLWIKI Canada team makes consumer health information (CHI) available to all -- however, it is for informational purposes only and should not be construed as advice or as a substitute for consulting a doctor. While we strive to keep all content current and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability or suitability of information, products, services, or related graphics contained here or on any of the websites listed. Only qualified health providers can provide health care e.g., they will take your health history, examine you, and bring their expertise and experience to bear on evaluating you. Put simply, advice regarding your care should always include your physician and other health providers. Please ask your local health librarian for further assistance.

References

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