“You Can’t Contract Away Liability.”
Nov 5 2012 in Caring for Partners by ejourneys
That’s the word from my attorney’s office.
When my partner and I got our flu shots (along with some nifty coupons), I picked up one of these for each of us:
Writes the Indiana Assistive Technology Act (INDATA) Project, “This device, which is compatible only with Windows based computers, allows an individual to keep their up-to-date medical records on their person at all times. This is useful not only for organizational purposes, but also in the case of emergency. For example, if a medical team responds to an emergency and has the ability to access an individual’s medical information on a computer in the ambulance on the way to the hospital, it will help them better assist that individual who may be incapacitated or unable to give accurate information. Lives can be saved.”
It’s a neat little device that basically amounts to a 1GB flash drive embedded in a credit card-style housing. I was all excited to try out its built-in software — designed to guide users easily through documenting their medical history and any special considerations — and then post my own review.
The manufacturer’s Agreement came up when I plugged the flash drive in. To move any further, I would have to accept the Agreement. I’m the type of person who reads the small print.
This paragraph stopped me in my tracks. This image comes directly from the Agreement:
On October 21, the day of purchase, I wrote this email to the manufacturer’s support desk expressing my concerns. I’ve blacked out my own personal info:
Click here (and then the magnifying glass) for a larger view.
I then spoke with my lawyer’s assistant, and followed up with her today. She quoted my lawyer’s conclusion: “You can’t contract away liability.”
I still feel paranoid. My first blog post here details the bum steers I’ve encountered in connection with caregiving, from both medical and legal professionals. Multiple times burned, multiple times shy.
I have not yet heard back from the manufacturer’s support desk.
What do you think of the language in the ICE Medical Agreement? Have you had any experience with this device? Have you experienced any complications from its use? I’d love to know the opinion of any legal eagles (or experienced laypeople) out there.
Thanks!
roaringmouse said on November 5, 2012
EJ,
You are right to be suspicious. I am not a legal person by any means. But was married to a computer geek who dealt with stuff like that all the time.
A side historical/culture step……
In software programs the reasons for the volumes of text that you’ll probably never read but they can hold you accountable for…comes from the DMCA – Digital Millennium Copyright Act which has since had its name changed several times over. This was created back about 20 some years ago by the entertainment industry…which essentially had the law written to say that when you create “anything” and you put it on media…that “thing” belongs to the creator of the media and does not belong to you. That’s why in Facebook your information automatically belongs to them…unless you know how to back out.
So how can you get around this?…get your own medical alert key fob, create your own data and then wear it or store it, etc.
(Footnote: if you created a paper in college, technically due to the same law, the teacher can’t keep it because it is your own original work and thus still belongs to you.)
I’d be curious to hear other thoughts too!
Roaring Mouse
ejourneys said on November 5, 2012
Thanks, RM! I’ve followed and written on copyright, so am familiar with the DMCA. It’s good to have confirmation of my instincts. I carry my partner’s medical records on a flash drive as it is, but I think I’ll make up my own version of the above with basic and easily accessible info, so that no one has to swim through a sea of files.
I carry my own basic info on paper that I’ve laminated with packing tape.
Bette said on November 6, 2012
Hi Ejourneys,
If you’re uncomfortable – always so wise to wait and research first. You’ll feel better and I’m glad you’re doing the asking.
Just wanted to share “Vial of Life” with you. I used this for my mother and felt so good knowing all was organized if I wasn’t at home:
http://www.vialoflife.com/?gclid=CIHR3oPturMCFQyk4AodPWMAdw
Looking forward to hearing your update – maybe a response from the manufacturer.
ejourneys said on November 8, 2012
Thanks, Bette! That’s a great site. I’ve downloaded the .pdf files.
Denise said on November 6, 2012
Hi EJ–I’m so glad you posted about this! I have to think about this language. The thought that first occurs to me: If I enter my data in the device but inadvertently enter in the wrong information, which then leads to the wrong medical intervention during an emergency, it’s not the device’s fault. It’s awful that we always have to think of the ways we can cover our a**.
Update us when you know more.
ejourneys said on November 8, 2012
So true, Denise! More and more I think the DIY methods are the best way to go — with help from informative sites like the one Bette mentioned above.