Before buying a laser, check to see if the malpractice insurance carrier will cover your using the laser. Once you buy a laser, unless your purchase contract states otherwise, you will not be able to return it, if your malpractice insurance does not cover your use of such a laser.
One such case addressed this matter. In Ala. Ob/Gyn Specialists v. Cynosure, 1 Inc., an obstetrician bought a hair removal laser. Subsequently, he learned that his malpractice insurance would not cover his use of the laser. The physician realized that the laser did not fit into his practice, refusing to pay for the laser.
Cynosure sued him for payment. The obstetrician specifically alleged that the defendant misrepresented and/or withheld, suppressed, or concealed information regarding three issues.
1. The benefits and costs of the laser
2. Whether the laser was “cutting-edge” technology and would be so for five years
3. Whether malpractice insurance was available to cover the use of the laser.
The laser manufacturer countered that the doctor knew or should have known these facts. The language of the contract did not discuss these three contentions. Thus, these contentions were not part or integrated into the contract. Cynosure prevailed in its lawsuit, and the obstetrician had to pay for the laser.
There is a concept in contract law called impossibility that can be used to void a contact. An example of impossibility would occur when being forced to pay for a laser for which you signed a purchase contract but is banned for use in the United States. A court will not enforce such a contract. Not being able to obtain malpractice insurance based on the findings in this case is not an instance of impossibility that would result in the voiding of a contract.
The practical lessons of this case:
1. Before buying new equipment, find out if the malpractice insurance will cover possible suits related to the use of the equipment.
2. Obtain written proof of such coverage.
1. Ala Ob/Gyn Specialists v. Cynosure, Inc., No. 02 2608-V U.S. District Court for the Western District of Tenn, Western Division, 2003 U.S. Dist. Lexis 1972, Feb 7, 2003.
Noah Scheinfeld, MD, JD
New York, NY