Doctors Who Sued EHR Company Win First Round

Neil Chesanow


March 04, 2013

In This Article

Moving Forward With the Suit

"Right now, there are 4 named parties in the suit," says Allan A. Joseph, Robert Joseph's brother and a partner in Fuerst, Ittleman David & Joseph in Miami, the other co-counsel. "That's one of the questions we're frequently asked: 'How do I join this case?' I can't tell you how many phone calls I field a day with this very question." But in a class action, he explains, only a few representatives of the aggrieved parties are needed to get the legal ball rolling on behalf of all prospective complainants.

"The first hurdle is getting to court to see whether this group of plaintiffs represents a class," Moskowitz says. "If the court says yes, we'll certify the class. All 5000 doctors will be included. There's nothing more for them to do to join the class."

If the court gives the green light, Allscripts would then be required to furnish the plaintiffs' attorneys with the names of all MyWay customers, whom the lawyers would then contact. Those doctors could then choose to remain in the suit or opt out and file their own independent lawsuits.

Allscripts' attorneys tried to block the class-action motion by filing a motion of their own, to compel arbitration, arguing that binding arbitration is mandatory as stated in the contract that the doctors signed. It is that motion that the plaintiffs argued should be stayed on February 26. On March 4, the doctors learned that the judge who heard the motion ruled against Allscripts.

Allscripts now has 20 days to respond to the complaint, according to the court order. It could appeal. "We'll have to see where Allscripts decides to go," says Allan Joseph. "But it's certainly a positive step for the victims of Allscripts' actions."

The doctors are far from home free. "If Allscripts appeals the ruling, they can ask the trial court to stay the action pending the appeal," Joseph says, "and if the trial judge says no, then they can ask the appellate court to stay the action."

Nevertheless, the doctors believe that they have a strong case, and that the order denying Allscripts' motion to compel arbitration and dismiss the lawsuit is an auspicious sign. National Coordinator for Health Information Technology Farzad Mostashari, MD, recently lambasted EHR vendors for abusive behavior toward their customers, including unfair contract provisions. It will be instructive to see whether a court agrees in what could be a landmark case.

When contacted for comment, Allscripts told Medscape that it does not discuss pending litigation.