How Engineers Can Avoid Liability From In-House Processes
The determination of professional liability is essentially the application of an objective standard toward engineers. This standard is measured by what is considered to be reasonably prudent practice for those engaged in similar activities in the same general geographic area. The standard’s origins lie in the very simple concept that when one acts, one must act in a manner to avoid harming another. However, not every act resulting in harm to another imposes professional liability; only those acts negligently performed result in culpability.
Liability claims against engineers will increase if they continue to: make errors; commit to performing services beyond the scope of their professional capacity; abandon their professionalism in favor of economic expediency; fail or refuse to recognize areas of potential liability; or inadequately train and inform associates and employees to meet the requirements of modern professional conduct. There are other factors that may encourage a continued growth of claims against engineers, but they are for the most part external factors over which an engineer has little, if any, control.
We frequently hear that the engineer is becoming less a professional and more a business entrepreneur. Some people say that the nature of the profession has changed and that what was a professional act is now a simple matter of business expediency. This concept of the changing nature of the profession should be rejected. Clearly, external influences do impose themselves upon engineers, which have their roots in pure business economics. However, professionals should not permit these influences to dominate their conduct to the extent that they lose sight of the fact that by reason of specialized education, training, licensure, and ethical conduct, they are first and foremost professionals.
A primary step aimed toward reducing exposure to professional liability claims is establishing a program of in-house quality control. To begin formulating such a program, the areas within the design process which most frequently give rise to claims must be identified.
Five Problem Areas
1. Failure to Supervise and Review the Work of New Employees
Over the years, our analysis of claims against engineers indicates that a major portion of design errors stem from the work of inexperienced employees. The need for effective internal review seems to be confirmed by a related statistic: firms experience a greater number of claims during and immediately after a period of rapid growth than they do during a period of moderate growth. A glut of new hires and a heavy work-flow hinders the ability of senior staff and project managers to train new employees in the culture and procedures of the firm, to emphasize the importance of understanding contractual and professional obligations, and to look over the shoulders of new staff members.
2. Inadequate Project Coordination and In-House Communication
A second potential error arises from a lack of coordination within the design office. As design and construction projects become more complex and the role of each individual more specialized, many members of a design team often have little or no concept of how their segment of the design relates to the total project. As new digital technologies gain widespread use, including building information modeling, there might be a greater disconnect between the team members relying on these technologies and those who are unfamiliar with the emerging tools of the trade. In addition, there has been and may continue to be a glaring lack of insight into the construction process by many providing design services.
3. Failure to Communicate Between Prime Professional and Consultants
A third practice area that creates claims is a lack of coordination among the disciplines engaged in a total design process. Communication among the various professional offices engaged in the total design is often woefully inadequate, leading to considerable problems, misunderstandings, and claims. While the greater sharing of design information through modern technology might reduce this risk, reliance on technology alone will not eliminate communication problems.
4. Lack of Quality Control on Design Changes
Claims experience indicates that because of changes requested by the client, the engineer may acquiesce to unreasonable time schedules that do not permit adequate review and coordination of the design changes.
5. Poorly-Worded Contracts
Finally, the use of non-standard contracts that fail to adequately define the duties and responsibilities of engineers often generates disputes. Contracts that impose upon engineers burdens and commitments that are not a recognized part of a professional function create unnecessary and unwarranted exposures. They open the door to professional liability claims and legal actions based on contractually assumed obligations that exceed the scope of professional liability insurance coverage.
Solutions to these five problem areas vary with the size and function of each professional service firm. However, general recommendations can be made and put into practice in a manner consistent with good business practice and sound economics. In-house loss prevention and quality control measures are only effective and worthwhile if they set reasonable and attainable goals, are consistently implemented, and do not greatly increase the firm’s overhead expenses.
© 2011, Victor O. Schinnerer & Co. Inc. Statements concerning legal matters should be understood to be general observations based solely on our experience as risk consultants and may not be relied upon as legal advice, which we are not authorized to provide. All such matters should be reviewed with a qualified advisor. Victor O. Schinnerer & Co. Inc. is managing underwriter for the Schinnerer and CNA Professional Liability Insurance Program, commended by NSPE/PEPP since 1957.
Happenings on the Hill
- NSPE met with Rep. Dave Reichert (R-WA-8) and staff to discuss the Good Samaritan Protection for Construction, Architectural, and Engineering Volunteers Act (H.R. 1145). The bill, which Reichert introduced last year, would provide qualified immunity to engineering, architectural, and construction entities volunteering in a declared emergency. NSPE also met with senior staff for Senate Judiciary Committee Chairman Patrick Leahy (D-VT) to advocate Good Samaritan protection for professional engineers volunteering in an emergency.
- Rep. Dan. Lipinski (D-IL-3) sponsored a House resolution (H. Res. 552) supporting the goals and ideals of National Engineers Week. Lipinski, an engineer, has introduced a resolution in support of EWeek every year since 2006. Watch his floor speech here.
- NSPE cosponsored the Society of Women Engineers' "Diversity and Inclusion Fuels Innovation in STEM" Capitol Hill Day. NASA Administrator Charles Bolden made brief remarks during the legislative briefing, outlining NASA's diversity efforts and urging women to mentor each other in order to increase diversity in the engineering profession.
- The event also included a congressional reception, where Reps. Judy Biggert (R-IL-13), Robert Dold (R-IL-10), Eddie Bernice Johnson (D-TX-30), Dan Lipinski (D-IL-3), and Silvestre Reyes (D-TX-16), as well as National Science Foundation Deputy Director Cora Marrett, spoke about the importance of broadening participation in STEM fields.
- NSPE President Christopher M. Stone, P.E., F.NSPE, F.ASCE, LEED AP, was the keynote speaker at the Department of Transportation's National Engineers Day, which encourages high school students to pursue careers in engineering. Federal Highway Administrator Victor Mendez also spoke. As part of his presentation, Stone led students in a rousing game of Jeopardy! The interactive event also included a robotics competition and engaged students in discussion groups. Read Administrator Mendez's blog about National Engineers Day here.
- NSPE attended the launch of the MathAlive! exhibit at the Smithsonian Institution in Washington, D.C. MathAlive! seeks to increase elementary and middle school students' interest in mathematics by engaging them in hands-on activities that demonstrate math's applications in video games, sports, fashion, music, robotics, and more. NSPE and MATHCOUNTS are cosponsoring the exhibit, which is presented by Raytheon.
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Educate Yourself with NSPE Online Web Seminars
NSPE has an exciting line up of Web seminars this spring. Visit the Web site for the full listing!
Engineering Ethics: A Conversation About Expert Witness and Engineering Review Issues
Join NSPE Deputy Executive Director and General Counsel Arthur Schwartz and a panel of engineering ethics experts for a discussion on the obligation to reimburse a payment advance, limiting the scope of an engineering review, working for a law firm client involved in litigation with a former law firm client, and a forensic study dependent upon work of an engineer in dispute with a client. Polling questions and a Q&A will allow opportunities for audience interaction. 1 PDH
April 18, 12:30–1:30 p.m. (E.S.T.)
Engineering Ethics: A Conversation About Business, Employment, and Licensure Issues
Join NSPE Deputy Executive Director and General Counsel Arthur Schwartz and a panel of engineering ethics experts for a discussion on the signing and sealing of a subcontractor’s calculations, a Canadian firm’s noncompliance with engineering licensure laws, obtaining professional references, and an employee’s awareness of his employer’s financial improprieties. Polling questions and a Q&A will allow opportunities for audience interaction. 1 PDH
May 16, 12:30–1:30 p.m. (E.S.T.)
Visit the NSPE Web site to register today.
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Nominate Fellow Engineers for NSPE Awards
NSPE offers several awards that have upcoming deadlines in 2012. Below are just a few of the award programs NSPE will be conducting this year.
For details, visit the NSPE Awards Web page.
The PEPP Award is given annually to an individual who has made an outstanding contribution to the advancement and recognition of the role of private practice in serving the public interest.
PEPP QBS Award
The ACEC-NSPE QBS Awards Program was established by NSPE to recognize public agencies that make exemplary use of the QBS selection process at the state and local level.
PEPP Professional Development Award
The PEPP Professional Development Award is presented to employers who exhibit exceptional career development initiatives and employment practices that advance the engineering profession.
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HR Roundtable Registration is Open!
Register for the joint roundtable in a way that is easy for you.
Register online through Shop NSPE or download a PDF registration form and return the form with your payment to NSPE, 1420 King St., Alexandria, VA 22314 or fax to NSPE at 703-836-4875.
When: May 2–4, 2012
Where: Alexandria, Virginia
Early bird registration is February 10–March 31: $495.
Register from April 1–May 1: $595.
During Synergy, the two groups participate in joint sessions sharing their unique views on topics of importance to both. Topics for this year include:
For additional information or to answer any questions, please e-mail email@example.com.
- Continuing Education Requirement for Engineers, presented by Red Vector;
- Career Development and Training Practices;
- Legislative Update;
- Effective Organizational Change Management;
- M&A: Due Diligence and Integration; and
- Organizational Ownership Strategies.
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