Can Apria legally give me the book used by the clinic people

Snoregirl,
As I said, if I could get the manual off Ebay, or elsewhere, I would buy it for
a reasonable price.

OH YES...this is interesting. Tricare told me the people who sell these machines don't charge for making changes on the settings.

I told the lady I can't drive most of the time because I am on heavy pain
meds. She said they will come to the house and don't charge.

I did not argue with her, and if she is correct, that would be great. But I somehow doubt they can afford to drive a 60 mile round trip for free. But I
could be wrong.

My compliance has never been mentioned. NEVER!! Odd, everyone else seems to have a requirement. I just looked, I have 86.4 hours since the 8th of May. And I did not wear it for 3 nights for other medical reasons.
So 12 nights and 86.4 is about 7+ hours a night. Compliance should not
be a problem here.

Life can sure be "interesting" at times.

I spoke with my Resmed rep. He said giving the clinician manual to the patient isn't a law but a liablility issue. If the patient did something wrong, the DME could be held liable if the clinician manual was given to the patient. He said if the Dr gives the DME an RX for the manual, then the liability switches to the Dr.

DME_Guy wrote:CPAPs and BiPAPs both require an RX and also requre an RX to change the settings. Apria can't legally give the clinician manual away, only the users manual. Apria can't legally sell the manual either.

boy has someone brainwashed you... or is that just the typical DME protecting their legal right to steal from the patient. You really don't want me to post the "legal" wording of what you just said, you'd look kinda silly if I did.

First Apria is, from my experience one of the worst DME suppliers to deal with. I had nothing but problems right from the start with them. And it didn't get any better. Finally ConnectiCare dropped them as a supplier due to numerous complains. I got the same run around with my first Pro 2 bipap from Apria about not handing over the manual. I told the RT at Apria that Resperonics sells Encore software to anyone that allows the user to change settings so why can't I get the bipap manuals? I got some double talk about legal issues and doctor's scripts which is allot of crap. I recently got a new Resperonics bipap auto from another DME and was given all the manuals. I asked the new RT if he ever heard about not giving out the manuals. He laughed and said, "You must be refering to Apria... right?". He said it's to get people to come back every time they need a pressure change and wack their insurance for money. If anyone needs a copy of the bipap auto... let me know.

Hey guest, cut DME_Guy some slack. If you read his subsequent posts on this thread, you'll see that he backed off that original statement and confirmed that it is a liability concern, not a legal issue. Everyone is entitled to be wrong sometimes.

I give props to DME_Guy for a) labelling himself as such in a group that, generally speaking, thinks DMEs are evil crooks, and b) taking the time to see whether what he'd originally been told about the clinician's manual was truth or fiction, and then posting that it was fiction.

Other day, someone told me how to get into the Aria I bought as a spare. When my Respironics APAP C-Flex got here yesterday, I tried the same magic code on it, and nothing has changed - the same handwave, while plugging it in and you are in the "secret" menus. (The one I got came with the home provider's handbook and it also said the same thing).

I have the software, so I could change it by writing my script to the smartcard even if I did not know the magic.

I can't help but thinking that if it was a serious liability issue that someone was going to sue them for making it easy for the patient to change their own settings, that they would have to make it harder to get into the machine. In the old days, you pushed on a metal flap through a slot to pop open a secret panel where rheostats for the ramp adjustment and the pressure adjustment were. It seems like ever since then, for Respironics, it is "do the same two things" to get into programming mode for the digital machines. If it were a serious liability issue as opposed to just a control issue they might make it harder to get into the machines - they could require that you use a code based on the serial number. Get the code from an 800 number with some provider ID or from a website.

But they don't. This makes me think it is control.

How about the comment from my insurance that Apria does not charge to do
the pressure changes?

Put another way....IF I couldn't charge a person, at least for the gasoline, I
darn sure would not like to drive 60 miles round trip to change a setting.
Therefore, I think I would be happy to give the book to anyone who wanted
to do their own. That is strictly dollars and cents talking.

Another way of looking at it is that some of these people are really decent
human beings and they are concerned that we will hurt ourselves if we put
in the wrong settings. My bet is there are a lot DMEs who feel that way. So
they would drive across town to change the settings, regardless of getting
paid or not. The lady who brought my nose mask was a supervisor in that
department. She is probably on a flat salary, but she came over late in the
day. We were her last stop for the day.

And Guest, please take your comments elsewhere. I want to hear from the
DMEs, not insult them and run them off. As I have said before, your
credibility when posting as a guest is pretty low most of the time. Any
one can come in and make claims, without backing them up, or insult the
people on the thread. So please register. If you have anything important
to say you might be surprised how many of us will want to hear you. The
real bottom line to signing as a "guest" is that you are aligning your comments with the lowest common denominator on the forum.

[quote="txtornado"]Hey guest, cut DME_Guy some slack. If you read his subsequent posts on this thread, you'll see that he backed off that original statement and confirmed that it is a liability concern, not a legal issue. Everyone is entitled to be wrong sometimes.

I give props to DME_Guy for a) labelling himself as such in a group that, generally speaking, thinks DMEs are evil crooks, and b) taking the time to see whether what he'd originally been told about the clinician's manual was truth or fiction, and then posting that it was fiction.

I agree, In His real job he might be a Lawyer, and he just wanted to upgrade his image.

Now that's funny My cousin in Ohio just graduated from law school this past Saturday and I will let her know about your tip. Sounds up lifting to me .

DME Guy and All:

The business about avoiding liability by withholding the manuals is sort of a standard manufacturer theory of liability, for which I, as just a law student, can think of the counter-argument that withholding the manuals could actually expose the manufacturers to liability rather than limit it. In most states, something called the learned intermediary doctrine governs the law of prescription drugs, and most likely, prescription medical equipment. The learned intermediary doctrine is archaic and ill-suited to today's medical world, but it still governs. Basically, it transfers the liability from manufacturer to doctor for most mis-use of prescription items, so the doctor, not the manufacturer, is liable anyway. The exceptions to this fall in the area where all of the big-news lawsuits against prescription drug manufacturers lie--where the manufacturer has failed to warn the doctor of any dangers of the prescribed drug. Where the manufacturer warns the doctor, and this can be in a package insert, and the doctor fails to pass on the warning to the patient, the doctor is liable, so as long as the manufacturer warns the doctor, the manufacturer's liability ass is covered. The patient's only recourse is in a physician malpractice suit, not a lawsuit against the manufacturer. It is actually very hard for a consumer to win a lawsuit against a manufacturer in the prescription drug area. Vioxx and Phen-Phen were huge exceptions because they involved manufacturers' intentional withholding of information to doctors and/or the FDA.

Now, if you could turn it around and argue that by withholding the manual, the manufacturer has endangered the patient's therapy, the patient might have a recourse to sue the manufacturer directly. Translated into cpap, you would argue that therapy has been compromised by the withholding of the manual because patients can't do what they need to do to make their therapy most effective, and so, many struggle needlessly and/or give up. The problem here is that you need to be able to show real damages that can be measured in money--potential damage is not impossible in the health area but is not nearly as effective, and you at least have to be able to quantify the damages. Struggling with your cpap machine is not the same thing as people dying from heart attacks. The strength of this argument is that there is no danger to protect the consumer against--people buy chain saws without a prescription. You could require a physician warning for patients with heart conditions or whatever might actually induce harm by changing pressure, say, from 4 to 20.

Just the aspiring legal mind refusing to be sucked in by alleged liability issues. It's so stupid. Someone from a manufacturer says the word liability and most people nod.

Caroline

btw, the last post was from me, caroline. me and login are not working well these days.

Caroline,
Thanks for the background info. Very interesting. My wife was on Phen Phen
and I was on Vioxx for 17+ months when my first Cardiac Event happened.
No, we didn't sue. Just happy we are .....ok.

My gripes about some "guests" are their negative inputs to a thread. They
can derail a thread through personal attacks on our registered members
and I, for one, have asked permission to delete those posts from any thread
I start. I probably won't get permission, but when you and I are trying to
learn something and a "guest" attacks you...this "guest" side tracks you and
hurts the thread.

Guest who have good comments, like yours, are fine. I am hoping Apria just
sends me my clinician's manual. My insurance paid for it. I told them I would give them a release of liability for any changes I make. What is the excuse now? Besides, I have already admitted making the changes myself..to them and in this forum.

Bottom line is, if I don't get it, and my wife needs a machine after her
tests tonight, I will not buy her machine there. I will try to find an approved
DME group that WILL give us ALL the paperwork/manuals that come with
it.

chdurie wrote:Now, if you could turn it around and argue that by withholding the manual, the manufacturer has endangered the patient's therapy, the patient might have a recourse to sue the manufacturer directly. Translated into cpap, you would argue that therapy has been compromised by the withholding of the manual because patients can't do what they need to do to make their therapy most effective, and so, many struggle needlessly and/or give up.

Thank you, Caroline. You've just answered a question I've had since I first got my machine. The manufacturers ship both manuals with the equipment. I've wondered why they do that. Given what you say, it's to get them off the liability hook! Outstanding.

Now, correct me if I'm wrong, Caroline, but one way out of the current mess would be if somebody sued their DME for withholding vital information which endangered their health. Intuitively, many of us believe this to be true. It would also seem to be an easy connection to make legally since untreated apnea has documented detrimental consequences, and it is also documented, I believe, that a sleep lab titration is only representative of the night in question.

Now, as an example, say that an individual had a heart attack a year after starting CPAP therapy, and while recovering from that heart attack decided to get an APAP online and subsequently discovered that his 90% pressure with the APAP was actually 12 instead of the 8 he had been titrated at by the sleep lab. Seems like a potential case for claiming that withholding information considered by the manufacturer vital to treatment had been detrimental to that individual's health since he obviously was not getting the therapy he needed.

Since we've started down this line of thought, isn't there also some basis for a class action lawsuit here? I mean we have quite a few instances of DME's withholding this "vital" information.

Regards,
Bill

Bill--

I am just a law student, not a lawyer and I am not allowed to give legal advice, nor should you take legal advice from a law student. But I am allowed to share friendly thinking based upon my limited knowledge.

In this case, you would be best off with a plaintiff or plaintiffs such as the one you describe -- someone who had recently had a heart attack because of osa--about whom someone could prove actual damage from not being able to adjust his machine. of course, that also might be the plaintiff who would not be so hot because according to another post on this or another thread, sleep doctors are not so hot on apap for people who have had heart conditions. but assuming that is true and that you could get around that somehow, or you could find someone smart enough to be able to figure real -- and not just potential --damages from the withholding because of the maladies that most of us suffer from, you might not need your patient with the heart attack as plaintiff. the problem is that if the jury finds that the damage is too trivial, they won't award money and lawsuits aren't won generally on principles.

In either case, you would sue both the manufacturer and the DME because it would be an issue for the jury to resolve whether they were both acting in concert with one another. i'm just saying that my theory might open the door for the patient to reach the manufacturer directly, rather than have the learned intermediary slam the door in his face. It would be a jury matter to decide whether it is the manufacturer or the DME or both who was liable, assuming that the jury found fault. The easy argument for the fact that the manufacturers and the DMES are acting in concert is that there are separate manuals rather than just one manual--the manufacturer has produced separate manuals because it knows the DME will remove the clinician manual before giving the machine to the patient. So liability is shared. Manufacturers have physician package inserts for drugs, but you can always get those by asking the pharmacist.

Yes, there are class-action opportunities here since this since this seems to be widespread across the country. You need a big firm with lots of resources for a class action suit. Your lawyer down the street is not going to do it and he's not even going to tell you why in many cases. That said, class action suits are really tough and lawyers tend not to like them unless the profit outweighs the aggravation and difficulty of management. The big problem with class action lawsuits is that they are incredibly difficult to manage. It's one thing if everyone afflicted comes from one little town, and they sue one or two companies and a few hospitals, but with people spread across the country, the thing becomes a nightmare--unless, as i say, the potential win is so great that law firms will hire the armies necessary to manage the thing.
I worked for the judge who handled Phen-Phen in New Jersey, and the amount of paperwork and constant stewardship that was necessary was incredible, with all the medical reports and varying conditions and everything. You might be able to get the same justice with a bunch of individual lawsuits spread across the country, although the lawyers would have to make that call.

When I say that you need to be able to prove certain things, I don't mean that you, Bill, need to prove it. Your lawyer needs to be able to prove this, and in these kinds of cases, each side brings in experts and the trials turn into wars between the experts. So the lawyer will call an expert and the expert will figure out how to prove it or if it's provable if they think you have a valid claim. You don't need to do all the thinking.

Now, in New Jersey, there is an interesting opening in the learned intermediary doctrine that the court has recently allowed. In a case called Perez v. Wyeth Labs, I believe, the NJ Supreme Court ruled that the learned intermediary doctrine does not apply where the manufacturer has advertised its product directly to consumers. I don't know if ResMed or any of the other biggies have done direct consumer advertising, but if they have, NJ will allow the patient to sue the manufacturer directly. I don't know whether a patient-only manual or instructional tapes to patients qualify as advertising--they certainly are marketing materials. The theory is that where the manufacturer has spent substantial sums to advertise to consumers, it has initiated a direct conversation with consumers -- a conversation that does not end at the courthouse.

If you are seriously interested in pursuing this, pm me.

Caroline

Caroline, thanks for the "brief". (I could never understand why they are called briefs when they are pages and pages long...)

BTW, I LIKE lawyers...my son is a patent attorney and along with his 4 law school buddies are affectionally know as the Fearsome Five. They are all like sons to me. Needless to say I never have to pay for an attorney when I need one.