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Clinicians File Class Action Suit Against eClinicalWorks

Posted on January 9, 2018 I Written By

Anne Zieger is veteran healthcare consultant and analyst with 20 years of industry experience. Zieger formerly served as editor-in-chief of FierceHealthcare.com and her commentaries have appeared in dozens of international business publications, including Forbes, Business Week and Information Week. She has also contributed content to hundreds of healthcare and health IT organizations, including several Fortune 500 companies. Contact her at @ziegerhealth on Twitter or visit her site at Zieger Healthcare.

EMR provider eClinicalWorks has been hit by another class action lawsuit, this time a suit led by clinicians, raising questions as to how much legal trouble the vendor can survive.

The new suit is the latest of a series of dominos falling on eCW. Its legal problems began in May of last year, when it was forced to settle a suit filed by the U.S. Department of Justice for $155 million. The suit contended that eCW got its Meaningful Use certification by misrepresenting its capabilities.

Then, in November of last year, eCW was slammed with a class action lawsuit, this one demanding $1 billion. The suit alleged that by lying about the capabilities of its software, eCW “failed millions of patients by failing to maintain the integrity of patient records.”

Now, eCW faces another class action suit, this time led by primary care doctors. The suit alleges that because eCW’s software didn’t meet MU standards as promised, they lost government reimbursement. The suit asserts the eCW gave the PCPs “no reason to suspect that [it] had made false statements to obtain its certification.”

All of this is interesting in and of itself, but it doesn’t address the bigger question: Can eCW survive the legal firestorm that has engulfed the company?

eClinicalWorks is a private company, so I can’t offer detailed information on its finances, but it reported revenue of $130 million for the third quarter of 2017. If that’s a representative number, the company generates roughly half a billion dollars a year.

That’s a lot of money, but it’s not an infinite supply. The $155 million settlement has to have hurt (though I suppose it might have been covered in part or entirely by business liability insurance).

The other two lawsuits could prove more deadly. While it’s hard to predict whether a suit will go anywhere, there’s at least some chance that eCW will face a $1 billion judgment. Of course, even if it does lose the case, it will take effect only after several years of legal wrangling. Nonetheless, it seems likely that such a conclusion could bankrupt the company.

The other key question is whether eCW can hold onto its customers as lawsuit after lawsuit is filed. It might seem to some that eCW has been punished enough for its indiscretions, and that the additional lawsuits are largely part of a feeding frenzy. On the other hand, one might suggest that if eCW lied to all of its customers, it deserves to be forced out of business. It’s a flip of the coin at  this point.

Regardless, the suits do suggest that EMR vendors had better keep their noses clean. If they try to fool customers – or the feds – the results could be catastrophic.

Hidden Legal Risks For Doctors In EMR Use

Posted on February 17, 2012 I Written By

Anne Zieger is veteran healthcare consultant and analyst with 20 years of industry experience. Zieger formerly served as editor-in-chief of FierceHealthcare.com and her commentaries have appeared in dozens of international business publications, including Forbes, Business Week and Information Week. She has also contributed content to hundreds of healthcare and health IT organizations, including several Fortune 500 companies. Contact her at @ziegerhealth on Twitter or visit her site at Zieger Healthcare.

Medicine is a risky business, and malpractice suits one of the nastier part of the trade. Whenever something major changes in the way medical care is delivered — including, say, the use of EMRs — it makes sense to expect the worst.

That’s exactly where Dr. Sam Bierstock stands. Bierstock, an interesting guy whose act includes a blues band performing songs on the perils of managed care and EMRs, is going national with his view that EMRs are opening up  bigger med mal liabilities than doctors realize.

“What few people realize is that using an EHR exposes physicians to an Orwellian level of analysis of every single act while doing their job,” writes Bierstock, who nonetheless sees himself as an EHR advocate.  As he rightfully notes, EHRs can be audited to see how long it took a physician to respond to an abnormal lab finding, to find out what doctors said in internal e-mails or even whether they scrolled down an entire screen before closing a document.

To my (admittedly limited) knowledge, there have not yet been any major lawsuits based actions doctors took which can be pinned specifically on the use of an EMR (other than, perhaps, HIPAA breaches). But it does seem credible that such suits are on the horizon. After all, not to be too cynical, but medical malpractice lawyers do work on commission, and if I were them I’d see this as an opportunity.

In his commentary, Bierstock argues that there must be “meaningful tort reform” before physicians can safely use EMRs. The question is what reforms are the right ones.  To date, I haven’t seen model legislation, much less a live bill, which directly addresses this issue.  Do any of you have more information to share, readers?

P.S.  OK, I was wrong about there being no case law on this subject. Here’s at least one example where a physician allegedly altered an EMR audit trail to make it appear that a problem had been flagged.