Should You Sue Your EHR Vendor?

Neil Chesanow

Disclosures

March 13, 2013

In This Article

Can You Win for Negligence by the Vendor?

Surely if you could prove that the EHR vendor was negligent, you'd have a solid case, wouldn't you? Not necessarily. "I've seen contracts stating that the vendor wasn't liable for negligence," Sterling says. "I've seen contracts where the vendor wasn't even responsible for gross negligence. It's ridiculous."

Sterling feels that contracts are written by a vendor's attorneys "with the best of intentions, because they want to protect their intellectual property and ensure that they won't be held responsible for the mistakes, inadequacies, or incompetence of a medical practice in using their EHR." But, he adds, "you end up in a business relationship with someone who has no responsibility to you."

It's well worth reviewing your own contract to see how the issue of negligence is treated. If it looks fishy, run it by your attorney, who may request that the vendor revise the language on negligence before you sign.

If you're considering suing, it's also important to document what you did -- and were unable to do -- with your EHR. Make note of how many times you tried to get help, what the responses were, and the amount of time and money you're losing as a result of the vendor's actions or lack of action. But ultimately, it's likely to boil down to what's in your contract. Consulting an attorney to learn what sort of evidence is needed to mount a credible case is a good idea.

Conclusion

Whether a contract makes it legal for a vendor to enter into a relationship with doctors for which it has little or no responsibility cuts to heart of the matter in the Allscripts case. But if EHRs are to play a pivotal role in healthcare reform, then resolution of vendor-generated problems is vital. Farzad Mostashari, MD, ScM, National Coordinator for Health Information Technology, US Department of Health and Human Services, maintains that, by and large, EHR vendors have their customers' best interests at heart. But he warns the few that don't to do what's "moral and right" to clean up their act, or else more regulation will be the result.

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