There is no denying the fact that the use of software in consumer and industrial products has increase many folds. Also, they are the chief control part of these products. It is true that software could be expensive and poor quality but it could also be cheap and top quality. Other reasons what make software an ideal thing is that it does not wear over time, it could be protected from getting copied by competitors, it can be easily upgraded and also the cost of making it is not that high.
All these reasons explain the excessive use of software in today’s world (Voas and McGraw, 1997) . Unfortunately the software defects are also on the rise with this increasing use of software. The smallest of error could be injurious or even lethal. Deaths are rare but the fact is that they do occur. So software has added a new aspect to what is known as product liability: software liability. It is mostly the inferior quality software that causes these accidents, injuries and deaths.
Some of the possible software errors in medical equipment that could result in serious consequences include: patient and data do not match, faulty readings in an auto analyzer, poor software design causing errors in arrhythmia monitor and cardiac monitor, incorrect cardiac FVC values and many others. These are just some of the examples that could take place. The demand for more functions has increased drastically. More functions are expected of the same equipment. More functions mean highly complex form of software programming.
The more complex it is the higher is the danger of errors that could possibly result in accidents. (Boelzner, 1998) Software suppliers need to protect themselves from legal liabilities that arise from software defects. They do this by investing in good quality products instead of bad ones. Also they try to legally protect themselves, stating that the user is responsible rather than the manufacturer. Companies face a lot of criticism and expenses when the software they are using causes an injury or death. It is better that they avoid this problem by paying a little more for good quality.
If they do not, they will end up paying ever so more if someone gets hurt. In this case, prevention indeed is better than cure. (Armour and Humphrey, 1993) Damages that occur due to unreasonably dangerous products come under the law of strict liability. Strict liability focuses on the fact that whether the product contains dangerous defects. The product in this case is the software. If the defective software has any chance of even injuring a person then the court will decide that it is unreasonably dangerous. (Armour and Humphrey, 1993)
When software falls below the standards set by the law to avoid risk to people, it is said to be negligence on part of the programmer. The programmer is not liable for all the defects of the software that cause harm to others. They are responsible for only those defects that they could have possibly detected and corrected under what are deemed as reasonable control practices. If the programmer fails to correct an error that he should have then he is liable. However, it is difficult to prove whether the programmer was negligent or not.
If guilty of negligence the consequences for both, the programmer and the company, are very serious. Physical injury or death due to negligence is the worst scenario for the programmer. (Charney, 2003) In certain cases the software comes with warranties. They assure the user that the software they are purchasing will perform as stated. If in any case the software does not perform as it should then the user or the company has limited liability. Sometimes these warranties are flexible to be beneficial to both parties (programmer and company) to a certain extent.
In case of any risk to the third party the court will decide whether the warranty assured the company of performing likewise or not. The guilty party will be liable to the third party and would have to pay the damages. It is essential that programmers and the purchasers understand the importance of concepts like strict liability, warranties and negligence. A sound grasp of the above mentioned concepts would help the programmers protect themselves against lawsuits and other unwanted repercussions that could arise if they were found guilty.
They should be carful in what they warranty to the users and purchasers. Also, the programmers should take all possible actions to avoid negligence on their part. Negligence could have serious consequences and is very difficult to defend even with the best legal representatives. (Tomayko, 2002) The first step programmers and the company should take to protect themselves for software liability is to use the best available method without compromising on quality. They should search for the possible ways in which the software could be dangerous and then correct them.
They should try to improve the maturity of their software. Guidance of the people who have expertise in design for safety practices should be talked to. This would help them reduce the risks caused by their software. Reducing complexity will also reduce the errors and defects and therefore would reduce their risk exposure. Lastly, they should improve their contracts. They should be very precise in giving warranties. Also, they should disclose all possible dangers to the buyer. They should opt for the best legal advisors because the legal aspect in this case is very essential.