A recent case decided in the United States District Court for the Middle District of Florida is worth discussing. The defendant produces, markets and sells medical alert systems. 

The plaintiff’s mother purchased the defendant’s system and she suffered a fall that the system did not detect. She was rendered disabled for approximately twenty-four hours before the plaintiff discovered her. She died shortly thereafter. 

The plaintiff, as the personal representative of his mother’s estate, filed a suit against the defendant for the wrongful death of his mother, alleging three causes of action: strict liability, negligence, and violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). The defendant filed a motion to dismiss.

The court indicated that under the Federal Rules of Civil Procedure, in order to dismiss a complaint for failure to state a claim, the court should not dismiss the claim unless it is “clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” The court pointed out that in order to state an FDUTPA claim, the plaintiff must prove three elements: (1) a deceptive act or unfair trade practice, (2) causation, and (3) actual damages. 

The defendant contended that the plaintiff did not adequately prove the first element, i.e., a deceptive act or unfair trade practice, because he did not allege any particular deceptive or unfair trade practices engaged in by the defendant and made only conclusory statements without stating how the defendant’s practices were deceptive or unfair. 

The court pointed out that the plaintiff alleged two specific advertising practices that he considered deceptive and/or unfair:

  1. The defendant markets its product as capable of detecting greater than 95 percent of falls.

  2. The defendant misrepresents that undetectable falls can include a gradual slide from a seated position or wheelchair.

The court noted that in this litigation the plaintiff did not need to provide evidence of any support or even detailed information as to why he thinks these advertising practices are deceptive or unfair. He need only provide the defendant with notice of the practices he thinks are deceptive or unfair. Therefore, the court denied the defendant’s motion to dismiss. 

The importance of this case lies in the fact that although the writer is not aware of whether or not there was a written contract between the deceased and the defendant, one can only assume that there was no contract that contained a limitation of liability provision. In view of the fact that there were three causes of action, i.e., strict liability, negligence and violation of the FDUTPA, it is likely that there was no written contract with the limitation of liability provision as they were not raised by a motion to dismiss or by a motion for summary judgment. Had such a contract existed and had the limitation of liability provision been raised by way of a motion for dismissal or by way of a motion for summary judgment, the results may well have been different at that stage of the proceeding.

Obviously, the case will go to trial so one cannot reach a conclusion as to what the end result may be; however, as a cautionary notice to those companies providing medical alert systems, a contract providing the company with protection in the event a system fails to operate properly, would be very beneficial from a legal standpoint. 


Readers Ask

Q: I heard your comments recently regarding your opinion that before providing medical alert services you feel we should have a contract that limits our liability. I have two questions:

1. What if our subscriber refuses to sign such an agreement?

2. What if our subscriber, because of health or age reasons, is unable to sign such an agreement? Would it be appropriate or legal for an offspring or guardian to sign the agreement?

To read the answer, go to SDMmag.com. Click the Columns tab and select Security & the Law.

To ask Les Gold a question, e-mail SDM@bnpmedia.com.



With reference to your first inquiry, if the system does not operate appropriately, or even if the system does operate and the subscriber suffers a significant injury or loss, the probability is that they are going to file a legal action against you, the company. If you do not have a contract with a limitation of liability provision, the exposure can be very significant. In addition, obtaining insurance coverage without the contract may be difficult. Even if you are successful in a legal action, without insurance, the cost of litigation can be very, very significant. Failure to secure an appropriate contract is a calculated risk. 

With reference to your second inquiry, if your subscriber is unable for any reason to either understand or execute an agreement, you should attempt to get the legal guardian to sign on behalf of the subscriber. If no legal guardian, it is beneficial to attempt to have a family member sign the agreement. If a caregiver is a legal guardian, then it would be beneficial for the caregiver to sign. Notwithstanding, it is beneficial to have a family member or legal guardian sign on behalf of the subscriber. Whether that will stand up in a court of law may be questionable, but it is still better than having no signature at all.