Liability lawsuits could be on the rise

Monday, January 31, 2005

ALTON, Ill. - When it comes to the HME industry, legal issues typically revolve around charges of fraud and abuse, but that’s not always the case as a recent lawsuit demonstrates.

In November, a women who claims she fell off a defective shower stool decided to sue the product’s manufacturer, Invacare, and her provider, St. Anthony’s Medical Equipment, for about $100,000. The woman claims that while using the stool, the legs bent, which caused her to fall and suffer numerous severe and permanent injuries, according to a local newspaper.

While such product liability lawsuits aren’t new to HME providers, they are relatively rare. That could change, however, as the industry becomes more high profile, said healthcare attorney Elizabeth Hogue.

“I don’t think [attorneys] know that home care, hospice or HME exist, or even think about these entities as potential deep pockets,” Hogue said. “But as they become more familiar with them, we may see more lawsuits.”

To build a strong case in this kind of legal tussle, providers should develop risk management programs, said attorney Neil Caesar, president of the Health Law Center in Greenville, S.C.

Such a program should include:

- An inspection process for all equipment that insures it is safe and sound.

- Training and retraining of employees who go out in the field and assemble equipment and similar training for employees who instruct customers on how to use the equipment.

- A document for the patient to sign that confirms he inspected the equipment and understood how it operated.

Even with a risk management plan in place, someone injured while using a piece of equipment could still try to blame the supplier. It might, however, make the customer realize that his lawsuit is frivolous and should be dropped, Caesar said.

“It’s kind of hard for them to pursue the case in the face of such overwhelming evidence,” Caesar said. “In just about every state, you are not allowed to bring a case unless you believe it has merit. And if it doesn’t, they have an obligation to drop it.”