Should You Sue Your EHR Vendor?

Neil Chesanow

Disclosures

March 13, 2013

In This Article

What's Really Wrong With Your EHR?

If your EHR is not doing what you expect it to, it may not be the vendor's fault.

For example, consider those templates you may have been assured could be customized to meet the specific needs of your practice. "There is a notion that you could just go into an EHR and change everything, but that may not be a good idea, even if it's technically possible," Sterling warns. "You could introduce serious problems and cause collateral damage to your EHR records, because you've done things the EHR wasn't designed to do.

"It's not that the tool was faulty. How it was used was faulty," says Sterling. To avoid self-inflicted glitches, make a reasonable effort to use the product as is, he advises, despite what you may have been told when you were being wooed.

Also high on the list of physicians' complaints is incompetent or uncaring technical support. "It's like talking to someone who's just trained to 'yes' you and never do anything," Yunis, the vascular surgeon, says in exasperation. He says he even complained to the American Medical Association and was told that there was nothing they could do.

But here's something that will come as a surprise to many doctors: "After a practice has been using an EHR for 3-6 months, the users will know more about using it in their practice than the vendor ever will," Sterling observes. "A vendor doesn't have the time or inclination to keep track of how each individual practice is using its EHR."

In short, if you customize your EHR or otherwise use it in nonstandard ways and then need technical support, you may be told, "Sorry." But it may not be because vendor techs don't want to help; they may not know how to untangle the web you weaved, nor are they contractually obligated to figure it out.

Should You Sue or Not?

The first consideration should be figuring out how much money it will cost you to mount a lawsuit, especially against a vendor that may be a major firm with deep financial pockets. Weigh that against what you could recover. For many physicians, winning such a lawsuit might be a Pyrrhic victory.

Why? "The limitation-of-liability clause found in most vendor contracts typically limits damages to money paid to the vendor in the prior year," says Sterling. For example, say you purchased your EHR 3 years ago for a licensing fee of $10,000 per provider, which Sterling says is common. The cost of annual tech support is commonly 15%-33% of acquisition costs, or $1500-$3500 per year per provider, he notes.

Even if did you sue and win, you might recoup the cost of a year's worth of tech support. But what about that big upfront investment? Poof. Gone.

So it's important to read your contract to find out how much you could actually recoup under the best of circumstances. Weighed against anticipated legal expenses, many (if not most) doctors would probably have second thoughts.

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