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Some background: I'm employed at a small, Australia-based web agency that is dipping it's toe into Mobile Application development (iOS). The project that I'm working on provides a way for users to save medication dosage information which is sync'd with a backend server. Users must agree to ToS, Disclaimer etc before using the application.

This is my first iOS application, and the project is currently over budget. As a result, management is not devoting the resources to Q&A and is pushing instead for more features.

I am an employee of the agency, that has been contracted by a non-for-profit. The application will probably be released under our agency's name, but we also have the option of releasing it as the not-for-profit.

My question is, if there are bugs found in the application, and as a result a user takes an incorrect dosage of a medication, am I personally liable? Is there anything that I can or should do in order to protect myself personally?

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closed as off topic by Jarrod Roberson, Thomas Owens Jun 12 '12 at 14:44

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You may not be liable, but I would not feel much at ease in releasing an undertested application for medical dosage. By the way, is it even legal to distribute such an application without some form of testing from the local medical authorities? –  Andrea Jun 12 '12 at 13:25
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Ask your managers to use your application for their own medication and see if this has any effect on the resources for QA. –  Doc Brown Jun 12 '12 at 13:38
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this is so far off topic it isn't even silly ... you should speak with a lawyer in your jurisdiction. anyone who answers this should get a down vote automatically. –  Jarrod Roberson Jun 12 '12 at 14:00
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@JarrodRoberson I have this overwhelming urge to edit every answer and change them all to just say IANAL. –  user16764 Jun 12 '12 at 14:37
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@Oleksi I'd be wary of accepting legal questions, but thinking about it this does seem like something experts in the field would have some familiarity with. Good luck to Healthcare though; didn't mean to put it down, it's just a hard sell like some of our more expert-level proposed Q&A sites that aren't tech focused –  Ben Brocka Jun 12 '12 at 14:53

4 Answers 4

IANAL, but I believe the company the are working for or the non profit that contracted with your company would be the one to have liability, and there is likely something in the ToS that tries to eliminate any liability they do have, though it may be unsuccessful. There are some circumstances that may cause you to be liable, but are more related to criminal activity. If you knowingly and intentionally created a bug that caused harm, or some places it is also a crime to have knowledge of a crime and not report it, though these laws vary widely by location and type of crime.

In any case I wouldn't worry, as civil lawsuits tend to target the entity with the largest amount of money to pay damages, so as long as you have less perceived potential to pay a large sum than your employer its unlikely anyone will attempt to sue you directly.

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I mostly agree with your first paragraph, but disagree with your second. Even if the OP's company is not the primary party to the suit, their portion of the damages could be enough to close their doors. I'd consider that pretty devastating regardless of what happens to the other parties in the suit. –  GlenH7 Jun 12 '12 at 13:27
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@GlenH7 the effects of a suit can be devastating, but that is outside the scope of the question –  Ryathal Jun 12 '12 at 13:40

First of all, this is a legal question and you should consult a lawyer. I am not a lawyer. I did, however, study such things (at least in Canadian jurisdiction) as part of passing my P.Eng. exam.

Some things you could start looking at for your own research is the idea of the deep pockets theory which generally holds the employer liable for the actions of the employee. That would be in a civil case (i.e. lawsuit). As I said, that's not legal advice, just something interesting to look into.

My understanding is that if someone committed a crime, that's different. That is, there's a difference between making an honest mistake vs. messing with someone's dosage deliberately to cause harm.

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This sounds like the kind of case where you actually should get the advice of an actual lawyer in your area not a bunch of folks on the net –  Zachary K Jun 12 '12 at 13:37
    
@Zachary K appreciate that, but in this case I would like to gather and gauge opinions before looking for some professional advice. My hunch wass that I don't need to be too concerned, and much of this discussion has backed that up, as well as provided some simple advice for strengthening my position. –  Mathew Byrne Jun 12 '12 at 13:52

From a US point of view, the answer is "maybe" leaning towards "probably not."

Generally, the liability of the product will fall upon your employer. Assuming that you're not an owner of the firm, you would not be participant in the (vast) majority of any potential lawsuits.

The exception to this is gross negligence. (Un)Fortunately, gross negligence can be a highly subjective term, and can be equally difficult to prove in court. Every software product has some degree of problems with it. So long as there are some recorded(!) Test and QA activities that cover the majority of mainline function, the risk of being successfully hit with gross negligence is fairly low. It's important to keep records as they'll carry a lot more weight during a trial.

No one tests everything, nor is it even possible, so don't take the above as grounds for assuming anything less than 100% code coverage as not acceptable. Given that it's a medical product where lives and / or health could be affected, your burden is a little higher. OTOH, the product isn't prescribing the actual dosage to be taken so the burden isn't as high as it could be.

While the product can be released under the not-for-profit's name, that doesn't absolve your employer from liability. Even if the NFP has signed documentation indicating they accept liability for the product, they can turn around and claim that the requirements or testing were insufficient and drag your employer into any potential lawsuit. Ultimately, the company that made the product will always have some degree of liability for the product.

If you happen to be a licensed / professional engineer, which I doubt since you would have mentioned it, then you have a higher standard to hold yourself to. If you are a PE, you may personally be held responsible for some of the product's shortcomings if you failed to adhere to reasonable development methodologies. This is especially true if you are expected to stamp / seal the design or implementation documentation. That having been said, you would have already been aware of your liabilities as a PE if you were one.

Legal liability is one thing, moral liability is another. You need to be able to sleep at night knowing that the product you were working on didn't have any gross flaws that could significantly affect someone's health. It's also important to keep the product in perspective. This is likely a reminder / helper type system. It does not abdicate someone's own personal responsibility in maintaining their health. Do your best to make sure the product is solid, but also keep the ramifications of a bug in proper perspective.

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Regardless the fact an employee can be sued directly (or indirectly), he must be directly responsible for the problem.

As an employee, you pledge to provide means and not necessarily the results (by contract). Of course in the end, you will be judged on your results. This doesn't apply for responsibility.

Your individual responsibility can not be undertaken if there is that you are responsible for gross negligence or illegal behavior.

If you do everything you can to provide a professional, no one can ever accuse you of having made ​​mistakes in terms that they are wholly unintentional.

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That's going to be localized though. While UK/USA/Canada/Australia/NZ do share a common tort law historically and seem to often cite each others' case law, I wouldn't say that's true of France. For instance, Quebec law seems to follow French law more than English law in civil matters. We have to be careful here, unless we're experts in Australian law. –  Scott Whitlock Jun 12 '12 at 13:11
    
has this foundation in any law or is it just yr idealogy ? –  NimChimpsky Jun 12 '12 at 13:14
    
@ScottWhitlock: if programmers get responsible for bugs, world will stop running ;) It's just common sense here. I'm no lawyer but have reasonable level of experience for staffing & contracts. –  user2567 Jun 12 '12 at 13:18
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@MichaelBorgwardt: what is the legal system the OP lives in? –  user2567 Jun 12 '12 at 13:37
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The answer is that in most case, he will be sued if he did negligent or illegal acts. I guess it's not the case of the OP, so IMHO, he doesn't have to worry so much. –  user2567 Jun 12 '12 at 13:46

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