Managing your Professional Liability Risk
National AgrAbility Workshop
Hilton-Jackson
Jackson, MS
November 14, 2006
I. Three simple “Do Right” guidelines
A. Never practice outside your area of expertise.
B. Obtain a multi-discipline team with knowledge in the necessary professions, i.e., physical
therapy, occupational therapy, human factors, appropriate engineering fields, etc.
C. Communicate clearly and respond to client in a timely and an accurate fashion.
II. Henry de Bracton, 13th century jurist’s adage, “An ounce of prevention is worth a
pound of cure,” is appropriate relative to steering clear of both professional and
product liability risks.
III. Safety hierarchy (Typically, measures under “A” are most effective, ranging down to the less
effective measures toward the last categories. Measures noted with an asterisk[*] are examples of
applications of that level of hazard mitigation.)
A. Eliminate hazard or risk
Snapping plates were placed above stalk rolls on corn heads.*
Roll-over protective structure (ROPS) installed on off-road vehicles.*
Assuring that gasoline vapor in air composition either remains below 1 % or above 10 %
to prevent ignition. Flammability limits for gasoline vapor in air are between 1.4 and
7.6 per cent vapor by volume in air.*
B. Apply safeguarding technology
Kick-back chain brake on chain saw.*
Operator-presence [seat] power disconnect.*
“Dead man” throttle feature.*
C. Use warning signs
Essential if item cannot be eliminated or guarded.
Specific, clear message positioned where readily seen before hazard is imminent.
May achieve one-way communication…Training may prove more effective; especially, if
two-way communication, or other interactive efforts are used.
D. Train and instruct
Always redesign, if possible, rather than relying on training, instruction or issuing
warnings and operator’s manuals.
Use of seat belts.*
Use of electrical “lock-out/tag out.”*
Uninvited guest poses special problems for this level of the safety hierarchy.
“Good Samaritan” who helps a disabled person may also pose a “foreseeable risk.”
May include: Operator’s manual, CDs are common, possibly with visual, sound or
maybe a “hands-on” demonstration.
E. Prescribe personal protection
Steel-toed shoes.*
Safety harness for working overhead.*
Neoprene gloves requisite per a pesticide label.*
IV. Haddon’s Ten Strategies for reducing losses.
A.
B.
C.
D.
E.
F.
G.
Prevent the creation of a hazard.
Reduce the amount of the hazard.
Prevent the release of a hazard that already exists.
Modify the rate or spatial distribution of release of the hazard from its source.
Separate, in time or space, the hazard and the item to be protected.
Separate, with a barrier, the hazard and the item to be protected.
Modify relevant basic qualities of the hazard (An example is cited in item #1 in safety
hierarchy above).
H. Make item to be protected more resistant to the damage from hazard.
I. Begin to counter the damage already done by the environmental hazard.
J. Stabilize, repair and rehabilitate the object of the damage.
Summary: 3-“E’s” of Safety are
Engineering
Education
Enforcement
VI. Risk assessment or hazard analysis.
A. Conduct a risk assessment and then remedy any hazards.
B. Rate dangers with hazard risk index (Examples: Brauer, 1990, or p.119 in D. Murphy in
“Safety and Health for Production Agriculture.”).
“May I ask where you studied engineering?”
VI. Selections reprinted from the National Society of Professional Engineers Code of
Ethics.
“…Engineers must perform under a standard of professional behavior that requires
adherence to the highest principles of ethical conduct.”
[Excerpts from “I. Fundamental Canons and, II. Rules of Practice”]
“Engineers, in the fulfillment of their professional duties, shall:
1. Hold paramount the safety, health, and welfare of the public.”
Note: It is more ethical to go beyond the minimum requirement.
a. “If engineers’ judgment is overruled under circumstances that endanger
life or property, they shall notify their client…
b. Engineers shall approve only those engineering documents that are in
conformity with applicable standards.”
Note: Judges, plaintiff’s counsel and your defense counsel are very interested in the
applicable standards, the OSHA regulations or any professionally-accepted criteria.
Your failure to adhere to a standard may encourage a plaintiff to file a lawsuit, be
incorrigible in negotiations and persistent in seeking a maximum settlement from you!
e. “Engineers shall not aid or abet the unlawful practice of engineering by a
person or firm.
2. Perform services only in areas of their competence.
a. Engineers shall undertake assignments only when qualified by education
or experience in the specific technical fields involved.
4. Engineers shall act for each employer or client as faithful agents or trustees.
a. Engineers shall disclose all known potential conflicts of interest that could
influence or appear to influence their judgment…
5. Avoid deceptive acts.
a. Engineers shall not falsify their qualifications or permit misrepresentation
of their or their associates’ qualifications.”
Note: This is vital! Do not hire someone who doesn’t have the qualifications necessary.
“Engineers shall be guided in all their relations by the highest standards of honesty and
integrity.
a. Engineers shall acknowledge their errors and shall not distort or alter the
facts.”
Note: Your goal is to accomplish this without giving a client an inclination to file a
lawsuit against you.
b. “Engineers shall advise their clients…when they believe a project will not
be successful.
6. …Conduct themselves honorably, responsibly, ethically, and lawfully…
Engineers shall at all times strive to serve the public interest.
b. Engineers shall not complete, sign, or seal plans and/or specifications that
are not in conformity with applicable engineering standards.
Engineers shall not be influenced in their professional duties by conflicting interests.
e. Engineers shall continue their professional development throughout their
careers and should keep current in their specialty fields by engaging in
professional practice, participating in continuing education courses,
reading in the technical literature and attending professional meetings and
seminars.”
“Keep an eye on Thumper. I told the kids they couldn’t have him in their room.”
VII. What can go wrong?
A. Cause of dispute:
Dangerous device.
Unforeseen physical or project limitation.
Misunderstanding, co-worker mentioned unrealistic expectation.
Impulsive or poorly-trained user.
Extensive medical expenses of client unrelated to project.
Bankruptcy, divorce or other unforeseen client adversity.
Disgruntled client, high expectations not met, etc.
Client never satisfied.
Acquaintance suggests an attorney to your client who can “help.”
B. Someone is injured, for example. You and your attorney should agree on the
appropriate joint response, based on the category that fits your situation:
1. Engineer and team were professional in everything they did and their performance is
unrelated to the injury.
(If initial negotiations fail, the attorney may ask for a summary judgment…Essentially,
asking the court to dismiss the case.)
2. Engineer and team were professional in almost everything they did and no part of
their performance had a role or, in any way, is related to the cause of the injury.
(If initial negotiations fail, the attorney may ask for a summary judgment…Essentially,
asking the court to dismiss the case.)
3. Engineer and/or team made an error or omission that may have had some role in the
safety and ultimately the injury of the plaintiff.
4. Engineer and/or team did make errors or omissions that were the probable cause of
the plaintiff’s injury.
VIII. How to Limit Potential Liability Risk?
A. Consider these suggestions to manage your potential liability:
1. Be registered in your profession, i.e., engineer, rehabilitation engineer, etc., and keep
current in your field (Attend training, ASABE or RESNA conferences, etc.).
2. Caution partners, agents, well-meaning agencies, including medical personnel, about
making careless statements about resources and solutions that typically are beyond
those available from your team.
3. Retain all the evidence from testing your product and have documentation on any
modifications made to enhance safe use.
4. Choose your clients…Consult county agent. (Is this a sophisticated client? Does
client have reasonable expectations, based on your resources? What was client’s
previous relationship with the university? Any previous hint that potential client may
be inclined to be litigious?)
5. Do not take a client for granted; regardless of how long you have known the client.
6. Do not become too casual about the project (especially, problems).
B. What can you do if you discover a significant oversight that may cause a potential
injury?
1. Correct it immediately at no cost to client… Don’t wait for coworkers to become
defensive (Get documentation; possibly, appropriate photos.). Be proactive!
2. Request client not use device in that mode until modifications have been made; if
client agrees to accept some or all of the cost, fine (But make changes immediately!).
3. Do not seek a grant or just expect that some one else will make appropriate
modifications/correction!
B. Maintain professional liability insurance.
Assure that the extent of coverage includes your professional obligations.
Not much difference between the policies of reputable liability insurers.
God’s command, validated over the past 2000 years:
Compromise quickly with your accuser before it is too late. If he
drags you into court, you may not be released until you’ve paid the
last penny.
Matt. 5:25-26
“These are for you, Mom, and if you find a baseball in the fish bowl, it isn’t mine.”
References:
Accident Prevention Manual – Volume1, Engineering and Technology, 11th Edition. National
Safety Council, Chicago, IL.
ANSI/RESNA Wheelchair Standards Volume 1 and 2. 1998.
www.resna.org/ProfResources/Publications/PubDesc/WheelchairStandards.php.
Barnett, R.L. 1998. Design defect: Doctrine of alternative design. Safety Brief 13(4):1-8.
Triodyne Inc. www.triodyne.com/SAFETY%7E1/sb_V13N4.pdf.
Barnett, R.L. and D.B. Brickman. 1986. Safety hierarchy. Journal of Safety Research 17:49-55.
Barnett, R.L. and S. Glowiak. 2004. Standards – Impact and impotence. Safety Brief 27(2):1-4.
Triodyne Inc.www.triodyne.com/SAFETY%7E1/sb_V27N2.pdf.
Barnett, R.L. and W.G. Switalski. 1988. Principles of human safety. Forensic Engineering
1(3):154.
Brauer, R.L. 1990. Safety and Health for Engineers. Van Nostrand Reinhold, New York, NY.
Field, W. 2000. The Toolbox. 3rd Edition. Breaking New Ground Resource Center, Biological
and Agricultural Engineering, Purdue University, West Lafayette, IN. www.agrability.org
Field, W. 2004. The Toolbox CD. Breaking New Ground Resource Center, Biological and
Agricultural Engineering, Purdue University, West Lafayette, IN. www.agrability.org
Ha, D.G., G. Bertocci, E. Deemer, L. van Roosmalen and P. King. 2000. Evaluation of
wheelchair back support crashworthiness: combination wheelchair back support surfaces and
attachment hardware. Journal of Rehabilitation Research and Development 37(5):555-563.
Harris, C.E., M.S. Pritchard and M.J. Rabins. 2000. Engineering Ethics: Concepts and Cases.
2nd Edition, Wadsworth. Stamford, CT.
Haddon, W., Jr. 1980. Advances in the epidemiology of injuries as a basis for public policy.
Public Health 95:411-421.
Hobscheid, H.M., D. Moll and P.A. Robinson. 2005. Products Liability Law: What Engineering
Experts Need to Know. Edited by Y.W. Karwowski and I. Noy. CRC Press. Boca Raton,
FL.
Murphy, D.J. 1992. Safety and Health for Production Agriculture. American Society of
Agricultural Engineers, St. Joseph, MI.
National Society of Professional Engineers. 2000. Alexandria, VA. www.nspe.org/ethics.
Rake, B., and S.E. Boehm. 1989. Seat systems as restraints and manufacturers liability for
defective design. NHTSA Docket No. 89-20-N01-011. Washington, D.C.
Richardson, J.J., Jr. Liability and Insurance. Virginia Department of Agriculture and Consumer
Services.
Appendix A: Selected Standards. Note: These references change and are frequently
updated. This list is illustrative, not exhaustive!
ADA standards: Americans with Disabilities Act of 1990 and “succeeding embellishments,”
including ADA Accessibility Guidelines for Buildings and Facilities (September 2002
Amendment). www.access-board.gov/adaag/html/adaag.htm
[Compare to Uniform Federal Accessibility Standards, 2006 International Building Code and
ANSI 303.]
ANSI/ASAE S304.7 JUN00 Graphical symbols for operator controls and displays on
agricultural equipment.
ANSI/ASAE S318.16 JUN06 Safety for agricultural field equipment.
ANSI/ASAE S351 DEC01 Hand signals for use in agriculture.
ANSI/ASAE S354.5 JAN06 Safety for farmstead equipment.
ANSI/ASAE S493 JUL03 Guarding for agricultural equipment.
ANSI Z535.1-2002 Safety color code.
ANSI Z535.2-2002 Environmental and facility safety signing.
ANSI Z535.3-2002 Criteria for safety symbols.
ANSI Z535.4-2002 Product safety signs and labels.
ASAE EP363.1 FEB03 Technical publications for agricultural equipment.
ASAE EP443.1 FEB04 Color coding hand controls.
ASAE S276.5 FEB03 Slow-moving vehicle identification emblem.
ASAE S335.4 FEB04 Operator controls on agricultural equipment.
ASAE S412.1 FEB03 Ladders, gates, walkways and stairs.
ASAE S434 FEB03 Aperture for entry of electrical wiring into agricultural tractor cabs.
ASAE S440.3 MAR05 Safety for powered lawn and garden equipment.
ASAE S441.3 FEB02 Safety signs.
ASME A18.1-2005. Safety standard for platform lifts and stairway chairlifts.
ASTM F446-85(2004)e1. Standard consumer safety specification for grab bars and
accessories installed in the bathing area.
IEC 60417-1 Ed.3.0 b:2002 Graphical symbols for use on equipment-Part 1: Overview and
application.
ISO TC173/SC1. 2003. Voluntary wheel chair industry standards.
ISO 3461-1:1998 Part 1: Graphical symbols for use on equipment.
ISO 3461-1:1998 Tractors, machinery for agriculture and forestry, powered lawn and garden
equipment – Symbols for operator controls and other displays – Part 1: Common symbols.
ISO 3864-2:2004 Graphical symbols-Safety colours and safety signs – Part 2: Design
principles for product safety labels.
ISO 7000:2004 Graphical symbols for use on equipment.
ISO 80416-2:2001 Graphical symbols-Part 2. Form and use of arrows.
ISO 80416-3:2006 Graphical Symbols-Part 3. Design principles for graphical symbols for
use in safety signs.
SAE AIR4652 Design factors – Handicapped passenger boarding devices.
SAE ARP4120 : Foldable on-board wheelchairs for passengers with disabilities. Jan 2001.
SAE J115 : Safety signs. May 2003.
SAE J284 : Safety alert symbol for agricultural, construction and industrial equipment. Dec
2002.
SAE J1362 : Graphical symbols for operator controls and displays on off-road propelled work
machines. Dec 2003.
SAE J2093 : Design considerations for wheelchair lifts for entry to or exit from a personally
licensed vehicle. Nov 1999.
SAE J2094 : Vehicle and control modifications for drivers with physical disabilities
terminology. Jan 2001.
SAE J2249 : Wheelchair tiedown and occupant restraint systems for use in motor vehicles.
Jan 1999.
SAE J2388 : Secondary control modifications. Mar 2002.
Appendix B: Selected Professional, Technical and Standards-Writing
Organizations Active in the United States.
American Chemical Society
American Institute of Architects
American Institute of Chemical Engineers
American Ladder Institute
American National Standards Institute
American Academy of Ophthalmology
American Optometric Association
American Society for Testing and Materials
American Society of Agricultural and Biological Engineers (Standards are typically listed
under former name, American Society of Agricultural Engineers [ASAE]).
American Society of Civil Engineers
American Society of Mechanical Engineers
American Society of Safety Engineers
American Speech-Language-Hearing Association
Association of Equipment Manufacturers
Association of Home Appliance Manufacturers
Audio Engineering Society
Compressed Air and Gas Institute
Conveyor Equipment Manufacturers Association
Health Physics Society
Human Factors and Ergonomics Society
Institute of Electrical and Electronic Engineers
International Electrotechnical Commission
International Organization for Standardization
National Electrical Manufacturers Association
National Elevator Industry, Inc.
National Fire Protection Association
National Highway Traffic Safety Administration
National Institute of Standards and Technology
National Kitchen Cabinet Association
National Mobility Equipment Dealers Association
National Society of Professional Engineers
Outdoor Power Equipment Institute
Society of Automotive Engineers
Underwriters Laboratories
Veteran’s Administration, several R&D centers, including Center of Excellence in
Wheelchairs and Associated Rehabilitation Engineering
Wire Rope Technical Board
World Safety Organization
Gary Huitink, P.E.
Huitink Consultants, Inc.