BUYER BEWARE When making a used capital equipment purchase, require a signed contract to protect yourself from future malpractice claims.

To stretch their capital equipment budgets, many facilities, especially smaller ambulatory surgery centers, are purchasing used equipment online or from larger healthcare organizations. By and large, most seem to be happy with their purchases, as you can see in the poll results on the opposite page. But using secondhand equipment that ends up malfunctioning and harming a patient can put you at serious risk of a liability claim. Here's what you need to know and how to protect yourself.

Defunct suction machine
Consider the example of a 38-year-old patient with a torn medial meniscus who presents at a surgery center to undergo a knee arthroscopy. He meets with the anesthetist, who finds that he's a good candidate for surgery and at a low risk of complications. An IV is started and the patient is prepped for surgery, which proceeds with no further incident. He's then taken to PACU.

While in recovery, the patient vomits before his gag reflex has returned. The recovery nurse goes to clear his airway using a bedside suction machine, which fails to work. The recovery nurses search for a machine that does work, which takes 10 minutes. Meanwhile, the patient suffers oxygen deprivation and subsequent brain damage.

After filing a malpractice suit, the plaintiff's attorneys find during discovery that the owners of the ASC purchased the obsolete suction machine from a local hospital at a reduced cost. The machine was outdated, and the ASC cannot prove that the machine had ever been certified as safe for use, or that it had ever received routine maintenance or inspections. The lawsuit is eventually settled before trial for an undisclosed amount.

An all-too-common problem
We see cases like this a lot. Though secondhand equipment is especially at risk of poor maintenance and subsequent malfunctions, the situation could happen to anyone. Even a large healthcare organization with new equipment can run into trouble if it doesn't hold regular inspections and the device has a breakdown.

Have you ever purchased used surgical equipment?

• yes, and we're happy we did74%
• yes, and we regret that we did13%
• no13%

SOURCE: Outpatient Surgery MagazineInstaPoll, January 2016, n=182

Typically, though, it's most likely to occur in smaller ASCs. There are a few reasons for this. Since they're more likely to purchase used equipment from larger hospital organizations, they're more at risk of using outdated devices. Additionally, many times the decision comes down to a few physician-owners who may only look at the margins. If you're saving $30,000 on an anesthesia machine, why cut into those savings by spending an additional $700 to have it serviced and certified?

There's also the issue that the machine may not be used in a uniform manner. In centers with several different physician groups and specialties, some docs will use equipment harder than others, leading to excessive wear-and-tear issues.

Keep in mind that the liability falls on the purchaser of the equipment, not the seller. In the example above, the nurse using the suction device is assuming that it's in good working condition and can fulfill its duty to the patient, putting the blame of any error on the center that purchased it.

Preventing a liability claim
Preventing a problem is much easier than dealing with the adverse effects afterward. Here are a few key ways to mitigate your medical malpractice risk when purchasing used medical equipment:

• Get it certified before you purchase. If there's one thing I wish more facilities did, it's this. Get the equipment certified by either the manufacturer's service technicians or a third-party tech company (there are many options in every state) before you purchase it. It's not a common step many facilities take, but it is one that can alleviate the headache of purchasing a defective machine. If the seller hesitates due to the cost, offer to pay for the certification of the device as long as it passes. It typically costs a few hundred dollars, but that investment is well worth it in the long run.
• Have a paper trail. Once you've purchased used equipment, you also want to make sure it undergoes regular inspections and that there's a paper trail documenting its maintenance. Additionally, if you didn't get a device certified before you purchased it, make sure it gets done before it's used on patients. Not only will this help ensure that the equipment is safe for patients, but it also helps show shared liability if there ever is a lawsuit down the line.
• Involve your insurance agent or insurer. Before you purchase used medical equipment, talk to your medical malpractice insurance agent or carrier. Typically your agent will have risk management professionals on staff and law firms on call that can advise you on how to proceed. A good bet is to request they provide you with, or help you obtain, a sample contract for the purchase that protects you in the event of a future equipment failure. OSM