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Business Protection Bulletin

Malpractice and Innovation: Natural Enemies?

By April 1, 2015No Comments

Malpractice reflects many occupations: design engineers, doctors, lawyers, any advisors, consultants or professionals who render opinions. Sometimes referred to as professional liability or errors and omissions insurance, let’s use malpractice as a catch-all for these purposes.

Malpractice concerns a standard of care, an expected level of professionalism. For example, architects should use the building code as an important reference. But building codes are minimums; do you really want your house built to a minimum of safety standard? Yet, when design professionals stray from strict building codes, they must prove the betterment, have it approved, and then they are still liable in the event of failure, or perceived failure.

Deck collapses are frequent and potentially disastrous. Most occur because the deck is overloaded well beyond design capacity within the building codes. Knowing this fact, should the architect stray from code and reinforce the connection between structure and deck more? Does this create a duty to inspect the construction to assure the changes were implemented? Does this variance from strict code increase or decrease the design liability?

These are the questions all professionals should ask themselves. Fifty years ago, doctors were not sued for malpractice. Today, it is commonplace. What advances occurred in medicine over the last fifty years? If longevity increases lifetime discomfort or dis-ease, has advancement created expectation among patients for living longer and healthier, but disgruntlement when any set back occurs?

Consumers are more savvy today, and will be even more in the future. Science and technology advancements occur as a trial and error iterative process. New drugs, products, designs, and best management practices take time and unexpected consequences happen. The political process to accept change and betterment is also slow. So as a professional attempting to raise the standard of care, you must be aware of the legal consequences.

Review your limits of liability on your professional liability policies. Read or have a professional explain coverage as it relates to “experimental” or “developed” solutions.