Managing your Professional Liability Risk November 14, 2006 1. Stay within your realm of expertise. Limit your work to areas where you are exceptionally well qualified. a. Cautions: Never compromise safety where a real hazard exists. Don’t modify simply to satisfy a client, unless a unique disability constrains. Don’t dispense with any standard unless both you and your attorney agree that risk or liability is not increased. Never overstate the University or agency role and commitment. b. Consider making list and distributing, to cooperator/stakeholder personnel only, the extent to which resources and services can be provided to all clientele…”Manage expectations.” 2. Communicate!!! a. b. c. d. 3. Confer with your University attorney. Possible topics: a. b. c. d. 4. Clearly outline expectations to client before work begins. Consider formalizing your service(s) in a “letter of engagement.” Possibly send or copy this letter to the county extension agent. Clarify questions or improper interpretations immediately. Review web content, promotional materials and brochures and revise them for accuracy. Resolve complaints immediately; don’t allow a grievance to fester. What can you do to get the project on schedule, eliminate the point of contention or assure client that you are fulfilling your agreement? (Note: Is this the first hint of a client’s unspecified discontent or unmet expectation?) “Never say you are sorry, but treat accident victims kindly, efficiently and with care.” [Quote from Liability and Insurance by J.J. Richardson, Jr.] Discuss your role in or intent for a project; especially, if it is suitable for more than one client or there are plans for mass production. Culpability of your present range of activities. Propose a draft of any literature for clients and ask for a legal opinion, i.e. “manage expectations.” Request a summary of professional liability issues affecting tenured professors and staff during the past decade and how your University responded. Based on both your and your University’s concern about liability, obtain attorney’s suggestions on (1) what documentation is needed and (2) how long to retain documents after a project is completed. Vital steps to evaluate in the project design/delivery: a. Identify and follow any and all pertinent standards and federal and state laws. (Aircraft aisles are an example of an exception.) b. Test project for user and “bystander” safety. Budget, schedule and include diverse, uninvolved test personnel to try out device/project in their own way (No priming or tipping off!). Then suggest tests based on your protocol if your concerns haven’t been addressed adequately. c. Develop necessary warnings, placards, operator’s manuals, etc. Ask typical clientele to use them; then, improve your instructions based on suggestions and experiences. d. Determine essential instructions and training. An attorney’s opinion of drafts of items 4c & 4d may be requested before providing them to or using them for training the client(s). e. Have at least one professional engineer, recognized for his leadership and practicality in the vital technology related to the project, conduct an appropriate risk assessment. Require that he/she sign a document noting the items evaluated and record any suggested modifications. f. Determine, with your attorney’s endorsement, whether a project audit or follow-up evaluation, after some client use, is likely to benefit your organization. If so, determine whether your organization can provide the follow-up. (Not all of these steps are always essential. But remember, a “short cut” may not be a “short cut.”) 5. Keep project and client files: a. b. Include the letter of engagement, the engineer’s signed risk assessment and details on portions of your project that may pose a hazard. Review your progress on project “deliverables” and schedule deadlines. Contact client in a manner to get his support for any necessary revisions. Whether a contract exists or not, it is very important to briefly summarize any joint agreements (changes) in a timely letter or email. 6. Provide the project “deliverables” to clients, making sure they understand all warnings, understand all limitations and know what inspections, repairs or maintenance are required. Client agrees to train everyone involved (4d). Get commitments that anyone who becomes directly involved later will be trained by the client. All clients agree to the criteria above. 7. Confer with attorney if you feel uneasy, have a concern about a client, or certainly, if the client strongly objected to changes that were necessary. a. b. c. Restate accurately and clearly your commitments, your progress and completion of client’s project. Advise him of any project limitations and client warnings, discussions or correspondence. Decide with attorney on a proper response, should client make a formal complaint or file a lawsuit. Consider with your attorney if any negotiations or “mediation” may potentially defuse or prevent further grievances without yielding vital concerns or abetting a lawsuit. 8. If a lawsuit is filed, confer with attorney immediately. Communication is “privileged,” meaning he/she must legally keep your confidences. Don’t hold back any details…even items you believe are unimportant, embarrassing or incriminating. Let your attorney surprise the plaintiff’s attorney; do not give the plaintiff’s attorney an opportunity to surprise your attorney! Seek advice or action that will help you assure your future to continue to practice as a professional engineer. 9. Be very discreet about who you talk to and your comments relative to current legal action. a. b. c. d. e. Don’t share your concerns or experience with those who cannot assist. Know your department head’s perspective in advance. Do not share potentially damaging evidence. Consider responding to an inquiry that you’ll “see him/her in the office privately” and confer with attorney regarding the best approach. Don’t put any “non-project” associates in an awkward position by sharing with them because they can be subpoenaed to testify. This is not the time to write about any aspect of the litigation, unless your attorney sanctions the specific content. Maintain or redouble your professional activities, working with your employer(s) to get strong support to practice where you are exceptionally well qualified. 10. You and your attorney have separate roles, but must work together as a team. Prove your innocence, if possible; reduce your responsibility wherever appropriate. a. b. c. Evaluate negotiation, mediation or alternate judgment options with your attorney, insurance company, co-defendants, etc. Be open to consider alternate judgments that may prevent or mitigate harm to your professional reputation and the “good will” of your University. A judge or jury will determine how responsible you were based on evidence; thus, defining your exposure and deciding if or what damages are assessed and the amount of the final settlement. Gary Huitink, P.E. Huitink Consultants, Inc.