Should You Sue Your EHR Vendor?

Neil Chesanow

Disclosures

March 13, 2013

In This Article

Can You Sue Your EHR Vendor and Win?

From online chat rooms and forums to firsthand tirades, doctors are complaining about their dysfunctional electronic health records (EHRs). "We really feel abused," says vascular surgeon Jonathan Yunis, MD, of Vascular & Surgery Associates in Sarasota, Florida. "We've lost about $250,000 in revenue because our software wasn't properly written. If we weren't so busy, I'd consider bringing a lawsuit."

Many doctors no doubt fantasize about doing just that. But is it worth your time, money, and aggravation to try to haul an EHR vendor into court? Do you have a shot at restitution?

A class action lawsuit brought against Allscripts by several doctors alleges that the company did not live up to its claims, and that their product and service fell short of what was promised, costing the doctors tens of thousands of dollars. On February 26, Allscripts attorneys argued that the plaintiffs should be compelled to accept binding arbitration, as is stipulated in their contracts. However, on March 4, a circuit court in Miami issued an order denying Allscripts' motion to compel arbitration and dismiss the lawsuit.

Allscripts has 20 days to respond to the complaint. It could appeal. However, if the suit against Allscripts is allowed to proceed and the doctors eventually prevail, it would set a precedent that should make it easier for disgruntled users of other EHRs to seek financial restitution through the courts.

In Medscape's 2012 EHR Ranking Survey, 21% of physician respondents with EHRs said they were either very unsatisfied or unsatisfied with their EHR vendors. In addition, 28% said they were not happy with their EHR but were not changing because they'd already invested too much, whereas 10% said they were unhappy and would change.

An Uphill Battle

Given the high level of dissatisfaction, it would seem that suing an EHR vendor that fails to adequately address the complaints should be eminently doable. But EHR consultant Ronald B. Sterling, MBA, president of Sterling Solutions in Silver Spring, Maryland, stresses that, at present, winning such a lawsuit is still an uphill slog. Doctors still have the deck stacked against them.

Why? The vendor contract. If you didn't read yours, make sure you do so before proceeding. It typically lets the vendor off the hook for virtually anything that might go wrong, Sterling says.

"It's common for contracts to include such language as 'The product is sold as is,'" Sterling notes. "The vendor is basically saying, 'Hey, if this product does you some good, great. If not, we're not promising that it will.' Even failure to perform may not be enough to sue. Some contracts include no guarantee of performance. This puts practices at a severe disadvantage."

Nor is it easy to prove that a vendor made promises it failed to deliver.

"Contracts typically state that the buyer is an 'educated' buyer who has gone through a process where he or she understands how this product will be helpful, and any prior communications are now superseded by the contract," Sterling explains. "If someone made you a verbal promise that's not in the contract, it doesn't mean a thing. You won't have any enforcement mechanism. Many doctors are signing contracts without reading them carefully first -- or at all."

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