Category Archives: Description

Drager unfairly restricting access to manuals

Posted on ECRI’s BiomedTalk May 22, 2014:

Once you attend Draeger’s Apollo training, you will have one year access to their manuals online through their secure system.  Draeger keeps tight control on their technical manuals and expressly warns us about giving copies to anyone not trained as they are traceable.

Does someone’s technical training magically evaporate after 1 year?  If someone attends a service school, their access to service manuals should remain for the life of their career.  It is pretty obvious that Drager is attempting to restrict service on their machines so that they can generate more revenue through annual training or service contracts.  Unless this policy changes, I recommend that NOBODY purchase Drager Apollo units.

 

Pat Lynch

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Are Your Emails Enforceable Contracts?

According to this article from Forbes, email promises are legal.  If your medical equipment salesperson promises something, you can use the email to enforce the delivery of the promise….  Pat

Many people consider email to be an informal form of communication. As a result, offers, counter-offers and terms of proposed agreements are frequently exchanged via email with the hope and expectation that they are for negotiation purposes only. The question is, could such email messages be deemed to be legal, valid and binding agreements that are enforceable against senders in accordance with their terms? The New York Appellate Division in the recent case of Forcelli v Gelco provides some important guidance regarding the answer to this question.

Appellate Division of the New York State Supre...New York Appellate Division  (Photo credit: Wikipedia)

Background

In November 2008, Steven Kuhn drove through a red light and struck a vehicle owned by Gelco Corporation. As a result of the impact, Gelco’s vehicle was thrust forward into a vehicle driven by John Forcelli. A month later, to recover damages for his injuries, Forcelli commenced litigation against Kuhn, Gelco and other related parties.

In May 2011, while the civil procedure of the litigation progressed, Brenda Greene, a representative of Gelco’s insurer, who previously told Forcelli’s counsel that she had authority to settle the case on behalf of Gelco, offered $230,000 to settle the case on behalf of Gelco. Forcelli’s counsel orally accepted the offer on behalf of Forcelli. That same day, Greene sent an email message to Forcelli’s counsel stating the following:

Per our phone conversation today, May 3, 2011, you accepted my offer of $230,000 to settle this case. Please have your client executed [sic] the attached Medicare form as no settlement check can be issued without this form. You also agreed to prepare the release. . .Please forward the release and dismissal for my review. Thanks Brenda Greene.

The next day, Forcelli signed a release, notarized by his counsel, stating that he was releasing Gelco from all actions involving the accident in exchange for $230,000. However, just a few days later, on May 10, 2011, the New York Supreme Court (i.e., the trial-level court) issued an order granting a motion for summary judgment in favor of Gelco and dismissing Forcelli’s complaint and all claims asserted against Gelco. Gelco tried to reject the settlement claiming the email message did not constitute a binding written settlement agreement. However, the Supreme Court ruled against Gelco and entered a judgment ordering Gelco to pay Forcelli $230,000. In response, Gelco appealed to the New York Appellate Division.

The Decision

The Appellate Division unanimously upheld the decision of the lower court noting that, in accordance with general contract law, Greene had apparent authority to settle the case on behalf of Gelco, and her email message set forth the material terms of the agreement, contained an expression of mutual assent and was not subject to any conditions such as the outcome of the summary judgment motion. As to whether the email was a subscribed writing sufficient to establish an enforceable settlement agreement, the Appellate Division stated: “given the now widespread use of email as a form of written communication in both personal and business affairs, it would be unreasonable to conclude that email messages are incapable of conforming to the criteria of [New York law] simply because they cannot be physically signed in a traditional fashion.” The Appellate Division focused on the sign-off “Thanks Brenda Greene” at the end of the email concluding it evidenced a “purposeful” signature of the message that is consistent with the reasoning and intent of New York’s Electronic Signatures and Records Act (i.e., the New York version of the Uniform Electronic Transactions Act which governs the validity of electronic contracts and signatures).

Elaine and Karen Mills at 2013 contract signingContract signing (Photo credit: AFGE)

The Lesson For Contracting Parties

This case is a wake-up call to contracting parties to avoid casually negotiating the terms of proposed agreements via email without taking appropriate precautions to avoid having messages unintentionally deemed enforceable and becoming bound by unwanted agreements. In particular, offers, counter-offers and terms of proposed agreements communicated via email should explicitly state that they are subject to any relevant conditions, as well as to the further review and comment of the sender’s clients and/or colleagues. Further, such communications should include appropriate disclaimers such as that the email is not an offer capable of acceptance, does not evidence an intention to enter into an agreement, has no operative effect until a definitive agreement is signed in writing by both parties, and that no party should act in reliance on the email or any representations of the sender until a definitive agreement is signed in writing by both parties. Doing so would help avoid having messages sent for negotiation purposes only unexpectedly become enforceable agreements.

Oliver Herzfeld is the Chief Legal Officer at Beanstalk, a leading global brand licensing agency and part of the Diversified Agency Services division of Omnicom Group.

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Zimmer to pay Stryker in Patent Infringment

Judge orders Zimmer to pay Stryker $228 million in patent case

By Jonathan Stempel

Thu Aug 8, 2013 6:56pm EDT

(Reuters) – A federal judge ordered Zimmer Holdings Inc to pay Stryker Corp more than $228 million for infringing its surgical irrigation patents, and in doing so tripled a damages award by a jury that found Zimmer’s conduct was willful.

U.S. District Judge Robert Jonker in Grand Rapids, Michigan, also issued a permanent injunction banning Zimmer from selling infringing products, including from its Pulsavac Plus line.

Zimmer said it plans to appeal Wednesday’s decision.

Stryker and Zimmer are large producers of orthopedic pulsed lavage devices, a combination spray gun and suction tube that is used to clean wounds and tissue during surgery.

In a 2010 lawsuit, Stryker contended that Pulsavac Plus lavage devices infringed three of its patents and caused it to lose market share.

A jury in February awarded Stryker $70 million of damages representing lost profits, and found that Zimmer’s infringing conduct was willful.

Zimmer tried to have the award thrown out.

But Jonker said there was substantial evidence to support the jury’s finding, including testimony that Zimmer “all but instructed” its design team to copy Stryker’s products.

He also noted that Zimmer’s recent annual profit has been more than 10 times the size of the verdict and that a $70 million award “may not be enough, without enhancement,” to deter infringements.

“Zimmer chose a high-risk/high-reward strategy of competing immediately and aggressively in the pulsed lavage market and opted to worry about the potential legal consequences later,” the judge wrote in a 58-page decision. “Ultimately, however, the trial proofs demonstrated that this was not a close case.”

The judge also said Stryker should recover more than $18 million in interest and other damages, bringing the total award to more than $228 million.

Monica Kendrick, a Zimmer spokeswoman, said on Thursday the Warsaw, Indiana-based company made changes to its Pulsavac Plus line after the jury verdict, and believes the products it now sells are “outside the scope” of the injunction.

“Zimmer plans to file an appeal challenging both the earlier jury verdict and the recent rulings by the judge,” she added.

Jo Johnson, a spokeswoman for Stryker, said the Kalamazoo, Michigan-based company is pleased with the decision.

In Thursday trading, Zimmer shares closed up 70 cents at $83.29, and Stryker shares rose 11 cents to $70.90.

The case is Stryker Corp et al v. Zimmer Inc et al, U.S. District Court, Western District of Michigan, No. 10-01223.

(Editing by John Wallace and Bob Burgdorfer)

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Frank’s Hospital Workshop – Free manuals and education

‘ In some developing countries, up to 50% of the medical equipment is unusable at any given time. In some hospitals, up to 80% of their medical equipment is inoperative… ‘
(World Health Organization, WHO)

Preface
The last ten years I have worked as a biomedical technician, consultant and trainer in five diverse developing countries. All these countries were very different, but the problems in the hospital workshops were similar:

 no spare parts for repairs and maintenance
 no technical manuals
 poorly or no trained biomedical technicians
 no (financial) support by the responsible authorities
 no technical support from the manufacturers
 lack of awareness of the advantages of preventive maintenance

Appropriate training for hospital technicians and simple equipment for hospital workshops would improve the situation easily. But unfortunately most countries still have not recognized the importance of the repair and preventive maintenance of hospital equipment.

I hope that this website can be a little support to all biomedical technicians in developing countries.
Here you find:

 all the documents about biomedical technology I have collected
 all the user and service manuals I have
 all training courses that I have developed and have held

About this site
http://www.frankshospitalworkshop.com is a private and noncommercial website which can be used for self-study. It is a collection of documents, experiences, best-practice procedures and teaching and learning materials about biomedical technology.

Acknowledgement and apologies
Thank you to all who actively support my website by providing documents and information. Special thanks to all the companies who allowed me to provide their equipment manuals. To those companies who do not want their documents to be made public I apologize and I will delete the material immediately upon request.

‘ On the average almost 80% of the medical equipment in government hospitals are not functioning and the number even reaches 98% in dispensaries in some regions. ‘

(Ministry of Health, Tanzania, 2008)

With greetings from Tanzania
Moshi, March 2013

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Radiosurgery system prices rise nearly 80%

Radiosurgery system prices rise nearly 80%

By Jaimy Lee

Posted: March 25, 2013 – 1:30 pm ET
The average cost of stereotactic radiosurgery systems has increased by about 78% during the past year, according to the most recent Modern Healthcare/ECRI Institute Technology Price Index.

The index gathers monthly and annual price data for about 30 supply and capital items purchased by hospitals and other healthcare providers, based on three-month rolling averages.

The average price point for radiosurgery systems was $4.9 million in January of this year, a 77.7% increase compared with January 2012 and a 4.3% increase compared with December 2012.


Kevin Lee, a senior analyst in the ECRI Institute’s healthcare technology advisory service, attributed the cost boost to interest in newer and more expensive systems, such as the TrueBeam STx platform developed by Varian Medical Systems, a Palo Alto, Calif.-based device and software manufacturer.

The system costs between $3 million and $5.5 million—the higher prices usually take into account the purchase of other options and add-on technologies, Lee said. Older systems such as Varian’s Trilogy system usually cost between $2 million and $3.5 million.

“That’s what’s influencing the average cost,” Lee said.

Academic medical centers and cancer centers are most likely to purchase the higher-cost systems.

Varian and Stockholm-based Elekta are expected to introduce new platforms this year and Accuray, based in Sunnyvale, Calif., recently launched a new version of its robotic system. The new platforms could lead to higher averages costs across the board for radiosurgery systems, Lee noted.

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Copyright “Fair Use” Definition

Copyright

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February 1, 2013 · 4:47 pm