RE: Why do we put so many warnings in our manuals?

["Ed Manley" <edmanley -at- bellsouth -dot- net>]

Why put warnings? What's the point of suing people for their mistakes?

Microsoft quite unintentionally did a really dumb thing by hosting a party
to celebrate the PC in 1979. They rented the Fox Theater in Atlanta and set
up wondrous buffets and bars along the walls - food and alcohol flowed
freely, even excessively. I had a blast. Then I left for Birmingham around 1
AM. I awoke 92 days later in Trauma ICU in really bad shape. I didn't
contemplate suing - I made the decision to drive home. But, any decent
lawyer could, even that long ago, have nailed Microsoft to the wall (And
many folks since have, almost eliminating these elaborate and quite
entertaining yet functional roll-out parties. Even small company party's now
have to provide taxi or limo service and won't let drunks drive home, as so
many drunks (and victims of drunks) now sue, and fast). So, was this a
frivolous lawsuit opportunity or legitimate gripe? Could Microsoft have
avoided liability with a signed Don't Drive Home document each guest had to
sign? Nope.

My surgeon, some three years and nineteen orthopedic surgeries later, used a
topical anti-bacterial wash on the surgical site that, in conjunction with
the hot lamps above, over the period of a prolonged surgery, burned the
entire surface of my leg, including tissue inside the open surgical wound.
When they closed me up, that burned interior tissue promptly became
infected, an infection that would become chronic Osteomyelitis and
eventually (in twenty years and after 42 more surgeries) cost me that leg. I
did not sue him. Why? He certainly meant no harm - he was working his fanny
off to rebuild me. Doctors are just humans, we all screw up. Neither he, the
hospital, the maker of the chemical, the manufacturer of the lights, nor the
seller of the chemical, nobody knew that this could happen. Arguably, each
of these and more could be sued quite successfully, despite their legal
disclaimers and surgical permission forms...but to what end? The chemical
was recalled and the formulation revised, everybody learned something. No
harm, no foul...except that I will pay for it the rest of my life. I expect
they've all forgotten this by now. Would warnings on documents I signed to
allow the surgery have stopped me from suing? Would it have been frivolous
if I had?

Then, in 1998 another really big name ortho guy says "Why keep fighting that
leg - just whack it off and be done with it. I can fit you with a prosthesis
that relieves your chronic pain and ends this constant cycle of surgeries."
I check my insurance and find that I am indeed covered for 180k in the event
I lose a limb, which amount will see me through any recovery period and get
me up and walking on my new fake leg. So I said "Why hell yes, do it, and
quick too!" What he didn't tell me is that he stays in the OR until about
midway through the surgery, then leaves to go cut on somebody else while the
interns close up. Not to put too fine a point on it, these clowns fail to
properly secure the adductor muscle, so that I awake sans leg but in
horrible pain (the sciatic nerve runs through this now unattached muscle)
and have been on major doses of Fentanyl (a narcotic pain reliever usually
only used in the treatment of intractable cancer pain) ever since, and may
always be. Again, I couldn't see any value in a lawsuit, so I let it go.
Yes, I could have made some money, but did any actor in this scenario really
do anything wrong that should be punishable in a court of law? I can't see
it. More to the point, was there some documented legal verbiage that would
prevent me from owning their hat and a**? Nope.

Now comes my insurance company, which tells me they won't pay for the
amputation under my Accidental Death and Dismemberment (AD&D) coverage, as
they and my employer had repeatedly assured me that they would, since it was
caused by a pre-existing condition. I sued their fanny big time, and won,
though federal ARISA laws gave them enough wiggle room that it only cost
them about 8% of my policy coverage. I can clearly distinguish between a
doctor who screws up and an insurance company that used fine print buried in
a long, legalistic and obtuse policy declaration to profit from premiums
while avoiding claims. Uncle Sam cannot, but that's another rant.

The tie in to this thread is that each incident involved papers, forms,
policies...documentation that should be worded in such a way that lawsuits -
frivolous or otherwise, can only be brought when malicious or unethical
intentional behavior can be proved. In each of these instances the door to
litigation was wide open - and there was no effective language in any
document that could have stopped me. In the case of the insurance company,
their document should have clearly stated warnings identifying exceptions to
coverage, and it in fact did contain those words, but intentionally buried
in such a way that the policyholder would need a lawyer and a magnifying
glass to find it.

I now work in software development (when employed) as both an analyst and
writer. One of my previous employer's clients was a securities firm that
sued over the loss of some several million dollars of profits because our
software failed to perform as expected. Our legal disclaimers written on
every document, sometimes even on every page, saved the day. The suit was
not successful.

So, stuff happens. But, it clearly behooves you to consider apt warnings in
your documentation. I certainly do so in mine - the software design docs,
requirements docs, whatever artifact might become a contract between my
development team and the client are all clearly worded to express what the
software will, and will not, do for or to them, as well as any liabilities
and recourse.

I think you have to act this way; not everyone thinks like I do, and an
opportunity to get money is often enough temptation.

Have fun,
Ed



> > Unfortunately, we've seen so many instances of juries
> > rewarding idiotic behavior, it's easy to believe.
> >
> > Jo Byrd

Far from rewarding idiotic behavior, I think that juries are actually acting
quite rationally in that they are doing the only thing they can do given the
nature of the system.

Consider this: is there anyone who can honestly say that they've never done
anything really dumb? ...........


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