Are you at legal risk due to the millennium bug?
Here’s how to protect yourself from litigation
Most businesses have to worry about management and technical issues surrounding the millennium bug. Health care organizations have to worry about liability issues, too. (For more information about the Y2K problem, see stories, pp. 1-7, 8, and 9.)
According to John Gilliland, JD, of the law firm Gilliland & Associates in the Cincinnati suburb of Crestview Hills, KY, you face liability issues if a system failure causes harm to a patient. For example, a home health nurse may miss a crucial visit to a patient because scheduling software was not year 2000 (Y2K) compliant.
In such cases, you first need to determine if the software manufacturer is liable for that mistake, rather than you, Gilliland says. "The problem is that while the Universal Commercial Code states that someone who makes a product gives an implied warranty, software companies typically have language with their product stating that you waive that warranty," he explains. "If you are buying a turn-key computer system, as many health care organizations do, you have to look in the contract to see what promises have been made."
If you haven’t waived the warranty, then you must worry about which state law will apply — the one from the state in which the program was made, sold, or run. If you have a contract with a software company, language in the contract usually addresses the problem.
Get it in writing
Even if you have waived your warranty, you may still have recourse, Gilliland says. If you have written information from the company stating its product is Y2K compliant, and if a failure of that program or system causes injury to a patient, you probably have a good case to claim back damages.
Compucare, a health care information technology company in Reston, VA, provided its customers with a written warranty that its products are Y2K compliant, notes Steven Russell, senior vice president for Compucare’s field operations. "We saw this issue coming and developed our products to function with Jan. 1, 2000, in mind. The way we test it is to simply put various dates in the system and check the output. It’s something that organizations can do for themselves. It’s just tedious and time-consuming."
Another potential legal problem could arise if you can’t make payroll because you have a cash flow problem. "Most states have laws requiring that payroll be made regularly, and if you fail to make payroll, you can be subject to penalties and fines," Gilliland says.
"Make sure that you have a way to deal with the situation if there are three or four months where money isn’t coming in. You can hope that enforcement agents will be a little understanding of the problem, but you can’t count on that," he explains.
There also may be legal liability issues for disability insurers, notes Sandra Bell, an Atlanta-based attorney and Y2K consultant. "If those disability checks don’t go out due to a Y2K-related failure, are you prepared to hire someone to type checks manually with a typewriter? I advise clients to have enough cash on hand to operate for a month, whatever their operating costs might be," she says.
Computer glitch or negligence?
The issues that concern most clinicians and case managers are those that directly affect patient care. For example, who is liable if medical equipment fails?
"I don’t anticipate that there will be a generalized standard of care for every case manager that requires that every piece of medical equipment recommended for a patient is Y2K compliant," Gilliland says. "However, I do see a problem if a case manager is aware of a Y2K compliance issue with a particular piece of equipment and still recommends or approves it.
"Of course, no lawyer knows yet what the next few years will bring. However, I feel that there’s not an affirmative duty for case managers to check every product, vendor, or provider for Y2K compliance," he says. "There is a duty to check up on any product, vendor, or provider for which you were aware there was a problem."
"It may seem far-fetched now to check for Y2K compliance of a piece of equipment you recommend, but you can’t simply dismiss it," says Greg Cirillo, a law partner with the firm of Williams, Mullen, Christian, and Dobbins in Washington, DC. "Put yourself in the position of a jury in the year 2001 when a special computerized drip device failed to work and your patient died as a result. It’s going to look like a lot more like negligence."
Law firms already are gearing up for what they expect to be a passel of millennium bug claims, says Gilliland. The best way to protect yourself is to start a Y2K compliance program and be able to document you have shown reasonable care to prevent a problem.
You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content