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

Thank you, Caroline. Your post was very informative and enlightening. I don't have any expectation of pursuing this, but I was very interested in understanding if there was a chink in the armor here, and, from what you've said, it appears that there is.

From the perspective of a users group focused on interacting with the manufacturers, it seems worthwhile to understand the mechanisms which have driven the manufacturers to operate as they do, and what mechanisms we have, as consumers, to impact the way business is conducted.

Usually it's in nobody's best interest to use the legal system as a method to improve things. However, it is nearly always worthwhile knowing what the options are, even if it's a measure of last resort.

Regards,
Bill

Hey, Bill.

Like you said.......

NightHawkeye wrote:Usually it's in nobody's best interest to use the legal system as a method to improve things.

And we know what happens when the lawyers get involved with this stuff.....
Prices go UP!

Respironics currently has a recall on one of their ventilator systems.

http://biz.yahoo.com/ap/060505/respiron ... .html?.v=1


Den

Bill:

I was thinking about this on my way in to school for a meeting, and I realized there are other angles to go about this besides the product liability one. And I ran it by a law professor to make sure I had hit the bases.

There's probably something you can do with the informed consent doctrine, which basically entitles you to all information necessary to make an informed medical decision. I believe, but would have to check, that the change in medical records law, which now entitles you to your medical records, occurred out of informed consent cases. but physical damages

There may also be some Constitutional issues and a separate right to know cause of action that would entitle you to an injunction rather than force you to prove tangible damages. My professor urged me to email our Constitutional Law guru if I/you were interested in pursuing it. My school has a Constitutional Law clinic, and we could take a case on behalf of hoseheads if our Constitutional Law guru was interested (and obviously if you were interested.) Again, PM me if you are interested.

Caroline



Bonnie:

Do you think your sons would like to fight the hosehead battle?

Caroline

Bill--

That last post was me. I didn't see your post somehow before I just started writing. So now you know ALL the options.

Bonnie--

Forget asking your sons if they want to fight the hosehead battle.

This is good stuff, Caroline. Sure seems like some of this ought to be applicable to a patient advocacy group, don't ya think?

chdurie wrote:There's probably something you can do with the informed consent doctrine, which basically entitles you to all information necessary to make an informed medical decision. I believe, but would have to check, that the change in medical records law, which now entitles you to your medical records, occurred out of informed consent cases.

If true, then a simple legal statement taken to one's DME office should suffice to get one a copy of the manual. Or is it more complicated than that? I mean, the matter of rights is a two-way street. The patient has rights and the DME has rights.

Is there a simple way to get a ruling here? Or maybe one already even exists that would be applicable?

Regards,
Bill

Bill....Caroline......

I am hoping to have my clinician's book in the next day or two. If I could
drive I could probably go get it sooner. I plan on scanning it and making it
available to people who have the machine and need it..

Bill, did you see the Respironics Auto Bipap...new...for $999? A reputable
dealer too. If I were not retired I would have jumped on that one.

It would seem the companies would give us the books if we gave them a release of liability. Which I have offered....oh well......we will see how it goes.

If we could get one of each book, scan them in to a computer, then we could
give them out freely, if we didn't break any copyright laws. (Thanks Caroline)

Caroline...if you or I email a copy of these books to another person on this
forum, and they are a minor...do WE have liability? No money changed
hands, just a friendly gesture. Hard to know with the law now days.

_________________

CPAPopedia Keywords Contained In This Post (Click For Definition): respironics, bipap, auto

Bill--

the simple way would be to ask your DME if together you could fashion a release that would satisfy their alleged needs to be released from liability. you would want to cover yourself by releasing them from liability that only would come from having changed the pressure, not a total liability release; and truth told, if anything did ever happen to you, they would blame it on your need to control the pressure yourself, whether or not that was the true cause. if successful, that would do it on a person-by-person basis, but would not establish it as a practice. if you had a cpap advocacy group, you could try to get as many cpap users as possible to do the same thing, with what success, i'm not sure. right wing "moral majority" groups do have a lot of power with manufacturers because they are so well-organized and have huge consumer support; i could send you a very interesting article from the Chicago Tribune on that if you are interested.

you could also try working through your state insurance department if your state has a powerful pro-consumer insurance department.

i guess the reason i was thinking legal action is because there doesn't seem to me to be much incentive for the dme and the manufacturer to change their ways without legal pressure. but i could be wrong. a lawyer isn't going to instantly file a lawsuit; they're going to try to negotiate using the threat of legal action. i could be wrong about thinking that a manufacturer and dme would change their practice without legal action.

A judge or jury would have to buy the idea that withholding the clinician's manual is like the old days when patients couldn't see their medical records. the dme and manufacturer are naturally going to argue that this is not the same thing--that there are dangers from allowing patients access to information that would allow them to change their pressure, and that the pressures are established by doctors with medical skill and knowledge, that allowing patients this kind of access is giving them access to something they use to hurt themselves inadvertently, that dmes will change pressures with physician consent, and on and on and on. that's traditionally medical malpractice law. you would argue that the dme here performs the function of doctor if it is true that the dme is the root of resistance to change. if you can get the dme and the manufacturer to change the practice without legal action, go for it, but i don't see it. i could be wrong.

don't forget, it's not just the dme. the manufacturer is the one producing two direction booklets, and they're doing it with knowledge of how the vast majority of machines are distributed to patients--through dmes, who remove the clinician manual. the manufacturer is covering both its butt and that of the dme. i would think it would be cheaper and more efficient just to produce one booklet.

one low-cost way of doing legal action, unless there is a big contingency fee payoff for a law firm or you are rich, is to take your case to a legal clinic at a law school. there students do the work, which is supervised by professors, and the professors argue the cases in court because they're the only ones with licenses. but you're not interested in legal action.

Caroline

dllfo wrote:Bill, did you see the Respironics Auto Bipap...new...for $999? A reputable dealer too. If I were not retired I would have jumped on that one.

I saw that you, or maybe somebody else, posted about that. It's a darned good price, and makes me wonder if the trend, instead of APAP's, isn't going to be auto-BiPAP's. Realistically, a BiPAP is generally a more comfortable machine than a CPAP or APAP, and if it competes at the very nearly the same price, then . . . Makes me wonder if Respironics isn't poised to corner the market since that machine competes against all other APAP's. Kinda like Tigger . . ., the BiPAP-auto is the only one.

dllfo wrote:If we could get one of each book, scan them in to a computer, then we could give them out freely.

Maybe not so quick on that one, Dave. Don't forget about copyright law. I'm pretty sure somebody posted about the manuals being available from the Respironics website. Only problem is you can't find 'em if you go there. Somebody probably found it using a Google search.

Regards,
Bill

dllfo--

Maybe yes, but it's not clear-cut, and i am not a lega guru, just a law student.

does a parent have to give consent for a minor to receive a cpap machine? if so, i would say there could be liability. if not, then i would say no. a critical issue, i would think, is whether a minor can get the base equipment without parental consent. the reason this is important is because either the law or medical custom has said there is a cut-off age for responsible, unsupervised use of the equipment.

But a 7-year-old can be held liable for his own negligence. The magic age is 7. Courts believe that a 7-year-old, with adequate information necessary to make an informed judgment, is old enough to decide whether an action is harmful to himself or anyone else. So if a 7-year-old hits another kid with a baseball bat, the child, not the parent, can be held liable for the other kid's injuries. The reality is that the parent will pay, but if the court imposes a judgment, it's a judgment against the child, not the parent.

The key here is at what age can a minor be thought to appreciate the medical issues in unauthorized use of a cpap machine. It's most likely not 7, but is it 16? What's the cut-off age for abortion? I'm not advocating anything about abortion, only using that as another basis for a minor's appreciation of medical issues. Would a court lower the requisite age because here we are talking about unauthorized use of a cpap machine? Maybe yes, maybe no.

You're mixing apples and oranges re: the contract business. Money does not need to change hands for there to be an enforceable contract; it can be any form of consideration, of which money is one form. the contract business is only relevant insomuch as a minor cannot legally make a contract, so any contract made with a minor is unenforceable. Here an angry parent or lawyer's claim that there is a contract even though no money changed hands is nonsensical because of minors not being able to form legal contracts. That matters only to enforce the terms of the contract, not from any fallout that occurred as a result of the alleged invalid contract. Any negligence that occurs as a result of an invalid contract is a separate matter and likely would be addressed by applying negligence law as above.

All of this could vary by state law; I'm just giving you my thinking on what the majority of states would say.

If you're concerned, then maybe you shouldn't do it. But then I was skittish about driving my niece home from her birthday party in the front seat of my car one day before her 7th birthday, with her parent's consent, when New York City law says a child must be 7 to legally ride in the front seat. My sister-in-law said I was being ridiculous--if we were stopped, I should just point to all the presents and balloons in the back seat and say we were coming home from her 7th birthday party.

Caroline

[quote="dllfo"]
did you see the Respironics Auto Bipap...new...for $999? A reputable
dealer too. If I were not retired I would have jumped on that one.

________________

dilfo,

Who was it that had the Respironics BiPAP for $999 ?

Was that with a Htd.Humidifier ?

Thanks, Tim

Pratzert...It was $1,099 with the heated humidifier. The company was Noah's
Ark. While it is an excellent price, still a little more than I can afford without
messing the budget up.

Part of me says I could have bought this machine, paid a qualified tech to come set it up and still saved my insurance a thousand dollars. If I buy a
second unit some day, brand new...I would pay a tech to do that. Unless their boss forbid them from doing that.

I put out a thread asking people what their criteria was for buying a second
machine. No takers. That surprised me. I would have bet quite a few people have a second machine. Still learning....

Caroline, I see what you mean about how complicated the issues get. What is the expression..."No good deed goes unpunished.?" Too bad we couldn't get the appropriate individual to write a letter to Apria's legal department, asking them, in "legalese" what it would take in the form of a release of
liability, for them to release the clinician's manual. But by the time Apria's
lawyers got thru with it.....we would probably sign away all rights.

Then again, this thread is heading into some areas our host probably would
be comfortable with...might be time to move back towards the original
questions.

dllfo:

i think this forum recognizes free speech unless it goes overboard. i'm not sure what you think "the management" would find offensive here.

bill & dllfo:

actually, directions are not copyrightable. i didn't think so, but i had to look it up to be sure, so you'll forgive/be pleased about my direct quote of 17 USC section 102(b): In no case does copyright protection for an original work of authorship extend to an idea, procedure, process, system method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

directions are like a recipe, which is not copyrightable. but a book of recipes is copyrightable because it is the particular selection of the recipes that is the creative element and hence copyrightable. so similarly, dllfo's selection of directions for various xpap machines would be copyrightable because the copyright would protect his compilation--except of course, that you could get sued essentially for theft/distribution of information you're not entitled to in the first place.

Caroline

chdurie2 wrote: . . . except of course, that you could get sued essentially for theft/distribution of information you're not entitled to in the first place.

And I liked the argument so well up to this point, Caroline. Now, it's reset all the way back to the original question though. Are users of xPAP equipment entitled to the operating instructions for equipment they own, or is this information restricted to "medical professionals"?

Short of a Supreme Court ruling, is there any way to get an unequivocal answer?

Regards,
Bill

Bill:

I doubt this would go to the U.S. Supreme Court but you never know. My guess is that it might go as high as a circuit court on the federal level or an appellate court on a state level. Depends on how much there is for the manuafacturer/dmes to lose. Or were you being facetious?

Unless you have or can form a patient advocacy group that can picket or otherwise put pressure on manufacturers/demes, I don't see how you can do it. you can picket, announce a mask/machine purchase slowdown (only buy if you absolutely have to, etc.,) and get some press coverage out of that. the moral majority doesn't even have to picket; they just announce a plan to picket and manufacturers back off. but here you're dealing medical equipment, not dolls and toys. i'm referring here to the moral majority's threat to picket the American Girl store in Chicago in November or December last year because the company had donated all the money raised from selling $1 bracelets to a group that advocated birth control information for teens--well, there was no picket, only the threat, and now American girl doesn't sell the bracelets anymore. This is a little different--people have to buy machines and masks, unless curtailed buying would make a difference. If you could get people organized.

I'm not sure what your resistance to using the legal system is. If it's money, there are groups like the ACLU or law schools that might take your case free. My professor was interested; I'm not sure how much of that was because I was interested. I'm pretty sure other people (professors and students) at my school would be interested. He said professors at other law schools might be interested. The ACLU might be interested. I'm interested--I'd write a brief for you.

You don't necessarily need to do class action in order to have national impact--if one state or circuit changes, the others may follow as a domino effect.

I've thought of a few more arguments-- you probably could make an invasion of privacy claim; the case lifting restrictiions of women's right to birth control pills in the 1960s was done as invasion of the privacy of the marital bedroom claim; you may have a property claim (information/directions) as property; a right to know claim; some other amorphous-as-yet Constitutional claim, at least one product liability/negligence claim, and an informed consent claim. You also may have an invasion of the sanctity of the body claim, which is a little different than other invasion of privacy claims. A lot of times you argue them all on the bet that the court will throw some out and choose the ones with the most or any worth; also, courts, if they think your conclusion is valid, will bend their interpretation of the law in order to reach the conclusion you want. it's amazing how this happens sometimes. you could ask for damages or an injunction or both. You might get emotional distress damages. I said what I said about needing a plaintiff suffering a heart attack when we were just talking product liability claims--in some of these others, you don't need outrageous physical damages; it could be outrageous psychic assault, but it has to rise to the level that the average juror would be offended if the average juror ever heard the claim.

Also, you likely will not go to trial. About 90-95% of cases are settled without a trial. you just hear more about the ones that go to trial because they're more unusual for one reason or another. The manufacturer/DME may fold just on the threat of your evidence before you see the inside of a courtroom. oh, and judges love peer reviewed medical/scientific/sociological literature. and they love the results of scientifically conducted studies. that's winning evidence.

To be continued...

anyway, off my soapbox.

Caroline

Bill:

The professor who runs our Constitutional Law clinic has made a name for himself in arguing cases that restrict people's rights to information, so I think he might be interested. His reputation was made fighting shopping mall owners who resticted/prohibited people's rights to leaflet and distribute information in shopping malls, but restricting patients' rights to information/directions is a similar thing, I think.

Caroline