Can we be sued? 1

[petermeachem]

Not sure if this is the correct forum, but here goes anyway.

Can we be sued for results of advice we have given here or does the fact that no money passes mean there is no contract, and therefore no case.

I'm in England, where things are slightly different, but dragging people off to court seems to be a popular pastime in the States.

I am asking because there is a guy in the Access forum that I am worried about. He is a volunteer in a Hospital, and is fiddling about with a database which contains patients records and treatment plans. His knowledge of Access is clearly limited. My reply was that he should not even be thinking of doing that sort of work. Someone else said much the same, but is still helping him. Suppose because of his (the question asker) ineptitude, and poor understanding both of Access and our replies, he screws up the database so the unfortunate patients get the wrong medication, or too much, or at the wrong time? What is our legal position?
Peter Meachem
peter@accuflight.com

Support Joanna's Bikeathon

http://www.accuflight.com/blue_peter_bikeathon_2002.htm

 

[SteveTheGeek]

One can ALWAYS be sued, I suppose. That being said, (and I'm no lawyer either, but simply an opinionated libertarian) I'd think that since you're not aware of any criminal intent on his part, and that you're trying to help him with a technical issue, that you wouldn't bear any legal responsibility if/when the database gets hosed and adversely affects patient care. For that matter, it'd be difficult to see him getting sued (assuming he hasn't lied about his lack of qualifications), as I'd think the hospital would be held accountable for getting an inexperienced database administrator in a potentially critical position.

This is a technical forum, and to the extent that we're not actively and knowingly aiding network trespassing or virus creation, I don't think we have a legal responsibility to babysit the less experienced folks in here.

Hmmm... Can I be sued for giving you this commentary?

-Steve

 

[butchrecon]

I dont think anyone here can be sued for any replies we give to assist someone else. Ultimatly the responsibily lies on the tech who is on-site doing the job. Anyadvise he uses he is resposible for if he uses it. I am no lawyer though. Hey anything is possible I guess. I recently red a news article about a man who attempted to rob a house and got locked in the garage of the house he was robbing for a day or two and ended up sueing the house owners for mental anguish and won! So yes be careful when giving advise. James Collins
Field Service Engineer
A+, MCP

email: butchrecon@skyenet.net

Please let us (Tek-tips members) know if the solutions we provide are helpful to you. Not only do they help you but they may help others.

 

[petermeachem]

So is there anyway of protecting ourselves. I suppose the other thing that has made me think of this is that I have just forked out a large quantity of money for indemnity insurance. It is valid anywhere except in the US. I suppose because of the amount of legal action and the amount of awards. Peter Meachem
peter@accuflight.com

Support Joanna's Bikeathon

http://www.accuflight.com/blue_peter_bikeathon_2002.htm

 

[Chance1234]

I just read the post in the access forum,
i would say in all fairness that yes he doesnt know much about access which is clear from his questions, but all he has done is come to a forum to find help, if you dont ask , you dont get an answer. if you choose to answer that and you give advice its up to them to use it or not, if you dont want to answer then dont, but! i think the mistake he has made is saying where he works and what he is doing with this data, there are problem thousands of posts of similiar nature, people workign in goverment, tax office (PLEASE!!), other hospitals large financial instittues etc wth little or no idea of what they are doing , the only difference is they dont say.

whether he should be doing the job or not is quite frankly none of our business thats not what this forum is about or is it ?


going back to be can we be sued then i would say the answer would most definetly be no, firstly this is a forum for technical help posted by users, butrechon is right it is up to the techy on site who is doing the job , the only exception i could see is if you were to enter what could be seen as an agreement, say if someone posted "Can you write me this code" and you said yes, then yuo exchanged some e-mails of the forum or phone contact and it coudl get to the stage where you ahev agreed to write XXXX for such and such and you have said somethign along the lines of it will defiently do this or that, BUT! that is real uncharted territory i cant even see that happening,

Chance

http://WWW.5YLAC.S5.COM

 

[petermeachem]

say if someone posted "Can you write me this code" and you said yes

That is exactly what we are doing here. I don't think that money needs to be paid, and I don't think you have to say it will do this and that.

If someone asks how to programme something in a nuclear power station and I supply some code, and they use it, and the power station blows up, I would suppose that the survivors could sue me for negligence.

Any lawyers around? Peter Meachem
peter@accuflight.com

Support Joanna's Bikeathon

http://www.accuflight.com/blue_peter_bikeathon_2002.htm

 

[garwain]

Best solution is to throw in a disclaimer saying something like:
My code may not be perfect, use it at your own risk

 

[elizabeth]

From my measley one legal course, my understnding is that there must be consideration. The consideration could be money, or some other thing of value that you get in return for your service (advice). My understanding is if there is no consideration, there is no contract, and if there is no contract, there can be no liability.

James, I'd love to see the article on the robber. Is it online?

 

[BeckahC]

If someone takes code off of any site and uses it, whether or not they asked for it and does not TEST it first on a test program or test database with tons of back-ups and failsafes, then they are responsible for whatever happens! (At least, that's the way I see it;-))

If I were to ask you to supply me with some code for a database app that I administer or code or work on, I would consider it highly inexcuseable and irresponsible of ME if I did not TEST that code on my development system and double check through whatever QA process I have in place before placing it on my prodution system. If I went and put that code directly into my production system and it screwed something up, I would be ticked - mostly at myself, for not being more careful and doing more testing first.

I feel that as programmers/developers, etc, it is our responsibility to screen what we do on our production systems before we put it out there. I know through common sense, if nothing else, that if I were to ask for help here, the help I get may or may not work for my situation, and I certainly would not assume that anyone out there would know my system as well as or better than I do.

So basically, I believe that if anyone out there is that lazy and unqualified as to place the code or advice they get here directly and without any testing at all into use on their production system - they are putting themselves and their companies at risk - not the ones that they took the advice from.

But - I am not a lawyer - just a measly programmer that likes to be thorough when testing and would not place blame on others that belongs solely on me if/when I fail at any of my responsibilities.

HTH! BeckahC

 

[petermeachem]

Lawyers are brought up rather strangely, and don't in general behave like real people.
I looked for negligence definition on Google and found this from an American law firm.

Negligence - Part I: Definition
The doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence.
It is the failure to use ordinary or reasonable care.

Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence

On

http://www.crowlaw.com/neg.htm

, well worth reading. Esp the bug/pool and man killed by bullet.

So if we give advice which a 'reasonably prudent' person would not, we are negligent? Likewise, if we fail to do so we are negligent as well.

I wonder whether tecumseh could be liable for having the forum in the first place.

I know all this is absurd and ridiculous to the normal person, but law hasn't got much to do with truth, not in this country anyway. It has more to do with winning the case for your client.


Elizabeth, do you use the textcontrol forum? Your writing is similar to an Elizabeth there.
Peter Meachem
peter@accuflight.com

Support Joanna's Bikeathon

http://www.accuflight.com/blue_peter_bikeathon_2002.htm

 

[SteveTheGeek]

Peter,
I had the same idea when you started this thread and checked - Tecumseh has a full disclaimer under their "policies" page.
Here's the standard I go by: if someone is asking for technical assistance and is not obviously going to use it for deliberately malicious purposes, I try to offer useful advice. Regarding legal responsibility, it probably doesn't hurt that my suggestions to the extreme newbies' questions in these forums are uniformly general in nature and usually in the form of "have you tried this or that?" If someone is able to twist my wisdom into something destructive and turns around and sues me for it, so be it.
-Steve

 

[petermeachem]

I might just add a link to something like that into my signature. Nothing wrong with a little healthy paranoia. Peter Meachem
peter@accuflight.com

Support Joanna's Bikeathon

http://www.accuflight.com/blue_peter_bikeathon_2002.htm

 

[SteveTheGeek]

Yep, and ditto. Besides, it's only paranoia if they're NOT really after you...
-Steve

 

[BeckahC]

With how "sue crazy" this country is getting, I think it is a good idea to cover our butts, but I still don't think we would be held liable - they cannot prove that any bad things happened directly as a reslt of using our advice completely as it was meant in the same exact context, etc... They can say it, we can say that's not what we meant, and it's open to interpretation of the judge... BeckahC

 

[petermeachem]

beckah dis you look at the law page I referenced. I find this difficult to believe.
Reasonable foreseeability is not always easy to determine and in most cases is decided by a jury. In the previously-cited “bug bite” case, Gallick v. Baltimore & Ohio, the railroad contended that plaintiff’s injuries resulted from such consequences as were beyond the realm of reasonable probability or foreseeability, and that it had no duty to protect the plaintiff from any such risk. The trial court ruled that there must either be:

“direct evidence that the existence of the un-identified bug at the time and place had a connection with the stagnant and infested pool...or more circumstantial evidence that the pool created conditions and influences which helped incubate or furnish an environment for the bug...or that the insect, having traveled from other areas, became contaminated or infected by the pool.”

On appeal, the United States Supreme Court ruled that the evidence presented was sufficient to allow the jury to decide whether the insect emanated from the pool. It further concluded that it was proper for the jury to find that there was a causal relationship between the railroad’s negligence and the plaintiff’s injuries. The Court indicated that the question was whether there was evidence of any employer negligence causing the harm or, more precisely, enough to justify a jury’s decision that the railroad’s negligence played any role in producing the harm.

The railroad also argued that the injury was not reasonably foreseeable. The Court agreed. However, it found that the requirement of reasonable foreseeability of harm had been satisfied in this case, because the railroad negligently maintained the filthy pool of water on its property. The Court said:

I once spent a day at the Old Bailey (voluntarily I might add, just watching). One case was a car accident where both passengers were thrown out of the car. The person who was insured was thrown out of the passengers side and the person who wasn't out of the drivers side. The barrister was arguing that the insured had in fact been driving and that in the course of the accident they had been thrown across each other in the car and both exited by the opposite door. I don't know if he got away with it. Peter Meachem
peter@accuflight.com

Support Joanna's Bikeathon

http://www.accuflight.com/blue_peter_bikeathon_2002.htm

 

[butchrecon]

elizabeth, sorry. The article was in the local "PODUNK" news paper in my town in a section called "National News" (Gossip basically) section. James Collins
Field Service Engineer
A+, MCP

email: butchrecon@skyenet.net

Please let us (Tek-tips members) know if the solutions we provide are helpful to you. Not only do they help you but they may help others.

 

[monkeylizard]

Elizabeth is correct by mentioning consideration, to a point. Consideration is only necessary in Civil Court (I think it's called something like Court of Commons in the UK).

If you give me your bicycle and I pay you nothing for it (monitary or otherwise) then there is no contract and you can come take it from me whenever you want.

Since the tech in the Access Forum has given you no consideration for your knowledge, then there is no contract and therefore no liability.

Now, your concern is with Criminal Court, not Civil Court. For charges to be made (and more importantly, to make them stick), the plaintiffs (i.e. injured patients? hospital mgmt.?) would have to prove criminal intent or gross negligence on your part.

The criminal intent is a no-brainer. It could not be proven. Anyone accusing you of it could have counter-suits filed against them.

As for Negligence, the records of THIS forum could be used as evidence to show that you had (have) reservations about the technician's competency in Access, yet you gave him advice anyhow knowing the sensitive subject matter of his situation. Had he never mentioned his working environment, you would be in the clear. I STRONGLY URGE YOU to post a disclaimer in the Access Forum in his thread saying that you want to help him but that you have concerns about the depth of his knowledge in Access given the sensitive nature of the data. Recommend that he supplement your advice with a paid consultant or other source of information before altering the Access databases in any way. Monkeylizard
-Isaiah 35-

 

[petermeachem]

Monkeylizard
Thanks to you and everyone else for your advice. The very first thing I said to him, and the second, was that he didn't seem to understand enough what he was doing and he ought to find someone who did. Peter Meachem
peter@accuflight.com

Support Joanna's Bikeathon

http://www.accuflight.com/blue_peter_bikeathon_2002.htm

 

[PerryMc]

All said and done, yes you can be sued for the advice you give in these forums if you live in the US. Whether or not they are successful in their case against you depends on who can afford the best legal representation.

Smile anyway,
Perry.

 

[SteveTheGeek]

Ah yes, the OJ point. I'd love to see a study of civil and criminal case results vs. what each party spent in legal fees. In any case, I think it is safe to assume that whoever is coming here for technical assistance is coming here because the advice is free (and generally very good), and people that can afford significantly more expensive legal representation can also afford to pay high-end technical consultants.

-Steve