Class Action Accuses eBay, Prosthetic Limb Makers of Discrimination

Class action lawsuit says companies and healthcare plans discriminate against artificial limb wearers by taking away their freedom of choice.

A sprawling class action lawsuit concerning the freedom of choice offered to wearers of prosthetic limbs identifies a spiderweb of companies who have allegedly misinterpreted FDA regulations regarding prosthetics and their sale and repair. Defendants range from prosthesis manufacturers like Otto Bock Healthcare U.S. to online auction giant eBay to at least one healthcare facility.

The prosthetic limb class action lawsuit contains several core facets, including assertions that amputees are being discriminated against under the Americans with Disabilities Act (ADA); that vendors and manufacturers of prosthetic devices are misbranding their products as prescription medical devices to keep prices artificially high and out of the reach of many amputees; that most healthcare professionals and health plans ignore the ADA rights of an amputee and deny them proper care; and more.

Lead plaintiff Reginald Burgess claims in the class action lawsuit that he used an Otto Bock C-Leg following a partial amputation of the left limb. After using the prosthesis for a length of time, his class action lawsuit says he wished to modify certain portions of the system to better serve his needs. However, Bock reportedly refused to sell small parts directly to patients like Burgess, instead requiring them to visit a prosthetist to modify or repair his prostetic leg.

This is reportedly a violation of the ADA and the related Olmstead Act, which allows for the disabled to have the federally protected right of choice in their medical care so long as it is not more costly than the present cost of the care they’re currently receiving under a healthcare plan.

“Individuals have a right to goods and services provided to them ‘in the setting most appropriate to
their needs’ and that means they get to make the choice – not others,” the class action lawsuit says.

“‘Health Plans’ as those of Health Net and IHHI as operatives thereof are used to deny Olmstead rights to ADA qualified individuals forcing them to suffer decisions of the health plan in the best interests of the health plan itself.”

Furthermore, according to the class action lawsuit, the devices should not and cannot require prescriptions for sale and use because the FDA has “considered [them] ‘510K’ exempt medical devices generally safe for general public distribution” like crutches and wheelchairs.

When amputees like Burgess tried to look for parts and equipment allowing them to repair and/or improve their own prosthetics, they came across the website for eBay. They noted that there were listings for parts such as a battery and other materials. However, allegedly upon receiving a complaint from a prostheticist or someone else, eBay pulled the products and refused their sale, reportedly because company officials believed that the medical device materials required a prescription as companies like Otto Bock contend.

Since the devices are, according to the class action, to be available without a prescription, eBay has allegedly failed to provide disability accommodations by permitting the sale of devices like the Otto Bock C-leg and its parts without restrictions. The companies, which also include Endolite, should not require amputees to visit prostheticists, professionals who do not need licensure to practice, the class action lawsuit says.

“By no stretch of the imagination or law is it intended that an amputee be at the mercy or permission of another to find a way to walk again or sell their own property, and no such limitation is found in any law. There is no law that prohibits any amputee from owning or building any such prosthetic device to do so themselves,” the class action lawsuit says.

However, Burgess and the other named and anonymous plaintiffs argue that they should have access to certain software that monitors the sensors and helps the prosthesis function properly as part of the above-mentioned goal of self-directed care linked to the American with Disabilities Act.

The plaintiffs are represented by class action lawyer Garrett Eugene Skelly.

The Amputee Prosthetic Limbs Class Action Lawsuit is Reginald Burgess, et al. v. Otto Bock Healthcare U.S., et al., Case No. 3:14-cv-00302, U.S.District Court, Northern District of New York.