JUL-AUG 2017

MedEsthetics—business education for medical practitioners—provides the latest noninvasive cosmetic procedures, treatment trends, product and equipment reviews, legal issues and medical aesthetics industry news.

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Training options. You and your staff will require train- ing on the new device. But who pays for this? Some com- panies offer extensive in-offi ce training followed by online webinars and support as part of the purchase price; others require buyers to pay a fee for initial and ongoing training. This is a provision that can be negotiated. System upgrades. Practices should ask how upgrades are handled and make sure this information is included in the contract. If a device manufacturer develops a second- generation device or upgrades the system's software with new features, some companies will automatically upgrade existing systems, add the new features to your existing system, or al- low you to swap your device for the next-generation version. Recertifi cation fees. This is a contractual provision dictating that before a used laser can be resold on the open market, the manufacturer must inspect the machine to "certify" that the laser is in working order and operating to the manufacturer's standards. The fee that the manufac- turer charges for this service can be quite high—$50,000 or more—and it must be paid before the machine can be supported at a new customer site. There are valid reasons for having this fee in place, notes Marisa Trasatti, general counsel for laser manufacturer Sciton: "Recertifi cation ensures that the device is safe for use on your patients and returns the unit to manufacturer- safe specifi cations. There is a growing secondary market for used lasers that are potentially hazardous to patients and physicians alike. Given the current malpractice climate, using a laser that may not have been properly maintained or was never recertifi ed to the manufacturer's original specifi cations puts a physician's license and reputation at serious risk should an adverse event occur." Carefully review the recertifi cation provision, as it repre- sents a signifi cant future cost that may cut into the device's resale value and make it more diffi cult to resell on the open market. Keep in mind, some manufacturers provide a war- ranty and clinical training as part of the recertifi cation fee, which may actually enhance the machine's resale value. In some instances, you can negotiate recertifi cation fees— for example, when a practice is introducing a laser treatment in a market where it has not yet proven to be successful. And some laser manufacturers will even offer to repurchase the device after a period of time if customers can show that their market is not responding to the product offerings. These are all things that must be negotiated into the contract before the sale. Resale restriction. Another contractual provision you should be aware of is the resale restriction, which dictates that the customer cannot resell a laser without the manu- facturer's approval, or that the laser must be sold back to the manufacturer at a discounted rate. This provision can limit a practice's options when it comes time to upgrade to a new technology. As with recertifi cation fees, a resale restriction can be negotiated. This provision should be clearly explained, so that you fully understand your future rights. Service clauses and warranties. Laser systems, like other large equipment purchases, will remain under manufacturer warranty, but the length of the warranty can vary widely. The purchaser must make sure that the service clauses and warranties in the contract are suf- fi cient. Although commonplace, let's not forget that these machines actually fi re lasers. It wasn't that long ago that this technology was science fi ction, not reality. These are very sophisticated, sensitive pieces of machinery, and no matter how reputable the company, the machine will at some point need to be repaired and serviced. Custom ers need to know exactly what happens when the machine breaks, including what is covered (and what is not) under the warranty and what type of customer support is available to the practice. It is crucial to get this in- formation in writing to ensure timely, cost-effective service for your laser. In the case of warranties, practices can often negotiate the length and type of coverage. Laser treatments can be extremely lucrative, but they do require a substantial investment. Therefore, it is in your best interest to thoroughly investigate devices and make sure you understand all contract provisions before making a purchasing decision. Alex R. Thiersch, JD, is a Chicago-based healthcare attorney who represents medspas, plastic surgeons and other aesthetic medical professionals. He is the founder and director of the American Med Spa Association (Am- Spa) and a partner at ByrdAdatto Law Firm. Contact him at 22 JULY/AUGUST 2017 | Med Esthetics © GETTY IMAGES LEGAL ISSUES Customers need to know exactly what happens when the machine breaks, including what is covered (and what is not).

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