R. Douglas Vaughn Comments in Gag Clause Article on Behalf of IADC

November 5, 2015 02:23 PM

EHR gag clauses could hamper evaluation and patient safety at healthcare facilities

There is a likelihood that the contract for the electronic health record (EHR) used at your hospital or health system includes a gag clause that prohibits talking to others about any dissatisfaction with
the product. There are concerns that the gag clauses interfere with proper assessment of EHRs, which could in turn threaten patient safety.

An investigation by the web site Politico found that many contracts for EHRs include “gag clauses” that
effectively forbid healthcare providers from talking about problems of dissatisfaction with the software.
Politico obtained 11 contracts from hospitals and health systems in New York City, California, and Florida, all of them using EHRs from six of the biggest vendors. With one exception, every contract contains a gag clause.

“This is the first time the existence of the EHR gag clauses has been conclusively documented,” according to Politico. (For the original report on that investigation, go to http://tinyurl.com/naeryo6.)

The gag clauses became standard in EHR contracts when the technology was new and have remained since then, says Gary S. Sastow, JD, a partner with Brown, Gruttadaro, Gaujean and Prato in White Plains, NY. He believes that the gag clause issue came into being due to physicians generally being
opposed to EHR implementation.The theory behind the clauses was that criticism might have been unfairly placed with the software when, in reality, the criticism was directed at the overall concept.

Now that the medical community has moved beyond that point and physicians have accepted the reality of using EHR systems, Sastow believes criticism might now be more fair and says gag clauses are not appropriate. Users should be free to discuss their systems openly and honestly and share “the good, the bad, and the ugly,” he says.

Importantly, a gag clause should not prohibit internal criticism of an EHR, Sastow says. They prohibit
criticizing the EHR to outside parties, but not within the organization, he explains. The real danger from the gag clauses is that physicians and staff might be intimidated, overly cautious, and reluctant to discuss any EHR problems even within the organization.

“The intent of the gag clauses is to keep one hospital from calling another and saying, ‘Here’s our  experience,’ or ‘Don’t go with this company because we’re having all these problems,’” Sastow says. “That’s how people do business, and there’s a lot of value in hearing about someone else’s experience. But with these gag clauses, the manufacturer is blocking that.”

The gag clauses can be enforced, he says, but Sastow knows of no litigation accusing a hospital for
violating the clause. He says hospitals should try to have the gag clauses removed from the contracts by using the argument that if the company is confident in their product, there should be nothing bad to say. The issue is worth fighting over because EHR vendors could decide at any point to enforce the gag clauses, he says.

“If the clause can’t be removed, at least negotiate carve-outs that would make it much more difficult
to prove a breach of contract,” Sastow advises. “The carve-out could say that if there already is information in the public about this software and its weaknesses, then you can talk about it too, and there is no violation. When the information is no longer confidential, you should be able to put your two cents in because you’re not divulging anything confidential.”

Gag clauses could come into play with an EHR problem that is becoming increasingly common in
malpractice litigation, says attorney R. Douglas Vaughn, JD, chair of the Medical Defense and Health
Law Committee of the International Association of Defense Counsel (https://www.iadclaw.org) and a
partner with Deutsch, Kerrigan & Stiles in Gulfport, MS. Attorneys are reporting difficulty in obtaining
complete copies of a patient’s record because sometimes the same EHR system produces different versions every time it is requested, he says.

Incomplete and inconsistent records can hinder the hospital or physician’s defense, but Vaughn says
the gag clauses prohibit them from reporting those problems in a survey or other communication within
the medical community. Similarly, there have been reports of EHR errors in which patient records were
comingled, which resulted in patients receiving the wrong medication or treatment, he says.

“Those are the kinds of bugs you want to report and warn others about, but these gag clauses can keep you from doing that,” Vaughn says. “A lesson for the hospital is that you have to keep all this in mind when you’re considering the pros and cons of an EHR, because you may not be aware of what everyone else thinks of it. “

• Gary S. Sastow, JD, Partner, Brown, Gruttadaro, Gaujean and Prato, White Plains, NY. Email: gsastow@ bggplaw.com.

Source: Healthcare Risk Management, published by AHC Media, Atlanta. Phone: (800) 688-2421. Email: customerservice@ahcmedia.com. Web: http://www.ahcmedia.com/

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