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Ely, Counselor at Law
Category: Legal
Satisfied Customers: 102495
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I did not order a tens unit or authorize the company selling

Customer Question

I did not order a tens unit or authorize the company selling the tens unit to send me (my surgeon did) the tens unit or to set me up on an automatic shipment of tens batteries and electrodes. The tens unit vendor said I cannot return the above supplies to them even if I did not order them. They sent probably over a six supply of those items when i did not order or authorize them. Can they legally hold to that no return policy?
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note:This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation. Can you please clarify - what do you mean "my surgeon did." You mean you have a company and your surgeon works for you? Or, you are a patient and a surgeon ordered these items to be delivered to you?

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 1 year ago.
I had a neck operation in July this year and apparently the doctor who performed surgery on me must have ordered Zynex Medical to send a Tens unit to me that had 2 batteries and one set of electrodes enclosed. I gave this vendor my insurance company info to bill for the Tens unit. In the intervening time Zynex apparently set me up on an automatic mailing of additional batteries and electrodes in which they sent me two shipments of those two items not known to me or authorized by me. In setting up that unauthorized automatic shipments, they sent me 8 batteries amd 8 packets of electrodes ( 4 electrodes in each packet) all sealed in plastic bags. These shipments would be at least a year or more supplies. The bags require to be ripped open to get at their contents, ie they are totally sealed. Mean while my insurance company ( insuranced provided through my employer) declined to pay for the above items. I told the vendor to please bill Medicare since I now have left my job and cancelled my employer insurance but was told they don't deal with Medicare. I indicated to Zynex that I plan to return all of the Tens unit and supplies since have not used it at all and have not torn open the sealed bags. I don't want to pay $400.00 for them, especially since they set me up on the automated supply shipments without my knowledge or authorization. I was told they cannot take the batteries or electrodes back despite them being totally sealed in plastic that required to to be torn open to use them. Thus, I am inquiring on my rights in this situation.
Expert:  Ely replied 1 year ago.

Thank you.

The question here becomes that of agency. An agent (herein physician) can bind a principle (you) to a contract.

Agency can be binding in three ways. They are:

EXPRESS AGENCY - the agent has actual authority from the principal. Example is the power of attorney from above.
IMPLIED AGENCY - the agent has implied authority from the principal. An example would be an director or officer of a company - while they are not expressly representing the company, it is implied they are, and anything they sign would be binding unto the company.
APPARENT AGENCY - that there was apparent authority. Example is if you walked into a store, and asked how much an item is. A person who worked there told you $40 and rang you up for $40. Later you find out that the item was actually $150, and the employee did not even have the right to ring you up. Regardless, they had apparent authority to you, and the price quoted by the employee with the apparent agency is binding upon the business.

As such, someone in your situation wants to send the company a letter, stating that the physician was not acting as one's agent, and had no express authority from you - but perhaps even more importantly - they should have known that he had no express or implied authority, either. As such, then someone in your situation is not bound by whatever agreement the physician orally induced or signed, and this includes their auto-supply clause.

One wants to send back the products not used and unpaid for with the letter. At this point, the company may either drop the matter, or, try to sue for breach of contract, in which case the patient would have to show the Court that the physician's actions did not amount to an agency establishment (thus binding him). Alternatively, the patient can even file the lawsuit one's self first - this is called a declaratory judgment - and ask the Court to determine whether or not an agency existed. Most however would simply send the letter and hope the company drops the matter.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.