Vendor-physician EHR marriages should come with a prenup

At a recent webinar conducted by the American Bar Association's Health Law Section, discussion focused heavily on negotiating EHR agreements. The speakers, all of whom were health attorneys, provided valuable insight on some of the nuances of EHR contracting, including risk management, necessary contract terms, and financial concerns.     

What I found particularly intriguing, though, was that the speakers likened such negotiations to a "marriage" between providers and vendors.

Marriages, of course, involve tremendous negotiation and compromise. But this day and age, most parties to a marriage enter into it with great expectations and high hopes for a long and wonderful union. 

I'm not getting those warm and fuzzy feelings from providers and EHRs vendors as they embark into such new ventures together.

Vendor/provider marriages are more akin to Henry the VIII's marriages, full of mistrust and fear. Those were not long-term relationships, but the parties knew the deal.  

So while providers may hope to stick with one vendor for a long time, these ultimately are business deals and, like marriages, sometimes they will unravel. The provider may prefer a different product; the vendor could be acquired. We're already seeing some providers throwing in the towel and looking for greener pastures. Good negotiators need to factor that in. 

The webinar speakers addressed this issue. Attorney Lee Kim, from Tucker Arensberg in Pittsburgh, outlined several legal terms that speak to getting out of a bad "marriage," including being able to terminate the contract if the vendor fails to perform or incurs a data breach.

"Since you're dealing with patient data, you may want an out, not just a credit," she explained.

Kim also recommended that the vendor agree to "migration services" and return patient information to providers in a non-proprietary format upon contract termination; that way, a provider can more easily transfer such information to a different system.

In addition, the speakers said that vendors should be held accountable for their actions after termination of the marriage. For instance, they said, any limitation of liability on the vendor--by time limit or scope--should contain exclusions for certain problems, such as HIPAA violations and breaches of confidentiality.

That last point was echoed in a report recently issued by the American College of Emergency Physicians, which recommended that the "hold harmless provision" and the "learned intermediary doctrine" clauses in EHR contracts--which shift liability to clinicians--be eliminated. The study's authors said that "physician and other users cannot be expected to anticipate unpredictable errors," and warned that the clauses adversely impact patient safety.

Unfortunately, many providers--especially smaller ones--don't try to negotiate such changes; I'm not sure that they even read the legalese. But some of these terms they really should try to negotiate in to protect themselves; after all, they have the most leverage before they sign.

So perhaps one could characterize a provider-vendor deal as a marriage. Hopefully these marriages don't also include back stabbing, abandonment and nefarious activities, like they did in Merrie Olde--and still do, today. But it's not always going to be all wine and roses.

They really need that prenup. - Marla (@MarlaHirsch)