Electronic medical records (EMRs) can be a risky investment under the best of circumstances. After all, no matter how well you investigate an EMR, it's possible that the product won't be as usable as it seemed when you first tested it. But that's not the only EMR risk your hospital or medical practice needs to address.
Healthcare Dive talked to attorney Steven Fox, principal with D.C.-based Post & Schell, and he told us about several other EMR contract gotchas that can potentially lead to serious problems for your business. Read them over carefully, and you should be better equipped the next time you have to look at a vendor agreement:
Gotcha #1: It's all your fault
You would probably assume that if the EMR causes you to harm a patient, it'll be the EMR vendor's legal problem. Actually, probably not. Many EMR contracts with providers specify that if a patient is harmed using the system, the doctor or facility is legally responsible—even if the software caused the problem. "It takes a lot of negotiating to get them to accept responsibility, but you've got to try," Fox says.
Gotcha #2: Your insurance won't help
So, maybe you have to assume responsibility for errors made by the EMR. You can still fall back on your medical malpractice or business liability insurance in the event of a problem, right? Wrong. Under a legal rule known as "contractually assumed liability," your insurer is off the hook. In other words, once you accept the liability, it's all yours, Fox notes.
Gotcha #3: The "no upgrade" surprise
So, let's say you met Meaningful Use Stage 1 using the vendor you have. Now, you're expecting the vendor to support you as you work towards Stage 2 compliance. Guess what? Some vendors just aren't going there. You may end up with a vendor that isn't going to pursue certification for Stage 2. And the only solution to t he problem, assuming you're set on achieving Meaningful Use, is to spend big bucks—again—to bring in a new, MU Stage 2 compliant system.
Gotcha #4: Who's using the data?
In some EMR contracts, vendors give themselves permission to use and resell data from the system, as long as the patient data is de-identified. The problem with this, Fox warns, is de-identified data can be re-identified. Who's going to pay the legal costs if a patient's data is re-identified and exposed? You guessed it—it's you, unless your contract specifies otherwise.
Gotcha #5: Vendor-switching headaches
So, let's say that your vendor has all of your clinical data, hosted out there in cloud-land. If and when you choose to switch, you might find that they drag their heels in getting your data back into your hands—and that they may charge exorbitant fees to deliver your data, too. To avoid this, "you want to have an agreement in contract as to how difficult it's going to be to switch," Fox recommends. "You want them to have some obligation to treat you fairly."
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