The Path to Paperless

When an EHR System Fails You

Some practices seek legal recourse.

By Peter J. Polack, MD, FACS

A group of doctors who are suing their EHR vendor for selling them a “buggy” product and then discontinuing it recently learned that a judge is allowing them to bypass arbitration and proceed with their case in court. This highly pro-plaintiff ruling clearly has important implications for practices that believe they have been sold defective systems.

Here are the depressing details. A large EHR vendor sold the doctors software specifically for solo and small practices but it apparently never worked as promised. Eventually, the vendor stopped selling and marketing the product. In one case, a pain clinic that was promised a pain management module was instead given an orthopedics module. After experiencing years of problems and repeatedly requesting refunds, the physicians were only given an option to upgrade to the more expensive professional EHR system, and, in addition, they had to shoulder the additional data migration and training costs.

This begs the question: What could you do if your EHR system stinks? Do you have any legal recourse?

Who’s at Fault?

Before you undertake potentially expensive legal action because your EHR has not performed as expected, ask yourself these questions.

■ Did you buy the wrong system? Did you fall in love with a product at a meeting, get taken in by its “special” introductory price or not perform due diligence by talking with others who have used it in their practice?

We all have been through that with different pieces of equipment. But EHR is different in that it is generally more complex and expensive. What works splendidly for a solo pediatrician may be a disaster for an ophthalmology group. A doctor may be reluctant to admit that he or she made the wrong decision, particularly after committing extensive resources. This is sort of like hanging on to a poorly performing stock until it is nearly worthless.

■ Did you properly plan to prevent poor performance? This is a cliché in business, but it really does apply directly to the EHR implementation process.

EHR is not like an autorefractor or a YAG laser; you can’t just plug it in and expect it to work. The people-side of the equation, known as change management, is usually where EHR projects fail. And this is most likely due to superimposing a new technology on top of poor workflow processes — it only magnifies the extent of your preexisting problems.

■ Did you set yourself up for failure with unrealistic expectations? Did you get a system that was demonstrated on Windows but you insisted on running it on Macs? Or a wired system that you wanted to run wirelessly? Or a cloud-based system that requires more bandwidth than your office has access to?

■ Did you read the small print? When it comes to purchasing something as complicated as an EHR system, you should definitely have an attorney review the contract. Industry-standard, boilerplate clauses protect both the customer and the vendor, but they are typically slanted in favor of the latter.

Get an Expert Opinion

If, after running through this checklist, you still feel like pulling the plug, consider hiring an EHR consultant to perform a frank assessment of the system as it is used in your practice.

This expert can help you determine whether the issue is with the product itself or how it was implemented. Consequently, if the consensus is that the vendor behaved egregiously or the product it sold you is inherently poor and unsalvageable or, worse, both, then consultation with an attorney well-versed in health-care technology is in order. Although the wording in software contracts used to be ironclad, the case mentioned earlier shows that things may be changing in favor of the consumer. OM

Peter J. Polack, MD, FACS, is co-managing partner for Ocala Eye, a multisubspecialty ophthalmology practice located in Ocala, Fla. He is also founder of Emedikon, an online practice management resource for physicians and administrators.