Ask the legal expert ... about pressure-ulcer product promises

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Attorney John Durso, Ungaretti & Harris LLP
Attorney John Durso, Ungaretti & Harris LLP

What happens if we contract with an alternate pressure-surface vendor that claims we'll lower our pressure-ulcer rates by using its product, but our incidents actually increase? Can we sue?

Of course, you can sue. As my contracts professor always said, “Anybody with a filing fee and a written complaint can sue anyone.” The question is, are you likely to win? The answer is, naturally, “It depends.”

You'll need to prove that the vendor actually promised that its product would reduce pressure-ulcer rates. Did you receive anything in writing from it? Did the product come with any warranties that stated it would lower pressure-ulcer rates, or was the claim just fluff from a salesperson? Is there anything about pressure-ulcer rates in the contract? Were there any commercials, print or web advertisements, emails, or any other communications that promised such reductions? 

The best way to hold a salesperson accountable for his or her promises is to have proof. Get any promises in writing or in another medium that you can hold on to. Otherwise, you're going to have a he-said, she-said problem. 

If the product does come with any warranties or instructions, make sure you read everything — especially the fine print! Certain uses may void the warranties.

Also, consider the reputation of the company with which you are dealing. A warranty is only as good as the company that stands behind it.  

Note that even if you can prove that the provider promised to lower pressure-ulcer rates, you are still responsible for preventing pressure ulcers and potentially liable for regulatory deficiencies and personal-injury damages. However, you may be able to recover money damages in a lawsuit.