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Technology And the Standard of Care
By Michael J. Baker, Esq.


Not a day goes by when one does not come across an article or item in the news promoting the benefits of the latest technology; and, the associated efficiencies. There is no denying that the proliferation of advanced computer software, more powerful computers and "high-tech" products in the field, such as GPS (Global Positioning Systems), have generated profound changes in the way professionals apply their craft or conduct their practices. The continuing development of various technologies to assist design and construction will effect project delivery, as well as affect the relationship between owner, design professional and contractor. Hence, the question arises, as a result of these changes, what is the nature of and responsibility for design error or system failure in implementing or failing to use these wonderful "tools" now available.

Does the standard of care in your profession mandate that the latest technology be used? Are you required to employ the latest and most developed technology to solve issues and problems. What happens when you use technology in components or systems that have been subsequently superceded by "new-and-improved" modifications to those components and systems? In the office, it's CADD and computer modeling for structural calculations, load factors and dynamic analysis. In the field, it's employment of lasers for measuring, use of GPS, and other systems to achieve greater accuracy and, quality control in the construction process. Is use of the latest technology required to meet the standard of care?

WHAT IS STANDARD OF CARE?

The concept of what is "the standard of care" differs from one profession to another, but the term is generally used to describe the conduct of the skilled professional who exercises the requisite learning, skill and care ordinarily possessed and practiced by others and their professional field, i.e., the "custom" of the profession. Meeting the standard of care primarily consists of the proper use of certain "tools" and skills by the professional in executing professional duties. The standard of care does not necessarily require that the best or latest technology be employed on any given project. Generally speaking, you need to be aware of developments in your profession, and ask yourself if the tools you presently use keep up with the professional practice in the community, and are they appropriate and up to the task to execute the work or discharge your responsibilities.

Given the wide-spread use of "high-tech" in the office and in the field, there may be sufficient proof in you community that the "custom" in your profession is to use and employ certain advanced technology to execute the work; and, when a member of that professional community fails to use those resources, that member has fallen below the standard of care because of the failure to meet the custom in place. It is often argued that it is not the "custom" in the professional community to use a particular advanced technology. However, such a defense is going to be disfavored. This is particularly true when a system or technology is available that could have prevented a given injury or claim. In fact, given the nearly constant advances and improvements in many systems, such a defense will grow weaker over time as more and more design professionals employ a multitude of technological systems and "tools" in the office and in the field on a much larger scale.

GPS (GLOBAL POSITIONING SYSTEM)

GPS that is now routinely used in the field by civil engineers and survey crews. It was not long ago that such technology was considered exotic, expensive, and while available, not necessarily applicable or appropriate for use in the field. Obviously, in a short period of time, with the advances in GPS equipment and computers, a virtual revolution has occurred in the use of such equipment and its application to construction in the field. Today, can anyone seriously argue that the practice of engineering has not been greatly impacted by GPS and that some form of the use of GPS systems, particularly in the field, has become near standard practice.

When a technology gets so prevalent, cost effective and widely available, it is easily adopted as the "custom" in the practice. While such technology may be commonplace, not everyone is familiar with it. Thus, you, as the professional, need to learn about the technology so as to meet the custom of minimal qualifications in your professional community. Also, as time goes by, as the large-scale employment of the use of such complex systems continues to grow, the professional becomes obligated, as a matter of "custom" to use such a system. In fact, it may be successfully argued that failure to use an available system might lead to liability.

LIABILITY FUNDAMENTALS

In using advance systems and equipment it is important to remember certain fundamentals. In order to keep liability exposure to a minimum your firm should have in place, a system or procedure that allows it to demonstrate that users of a particular system or equipment employed by the firm know at a minimum; (1) the working theory of the program or application being used; (2) that the program or equipment that is being used has been tested for reliability and suitability; (3) that information or data input, as well as output, is consistent and conforming to the analysis or design of other parts of a project; and, (4) that the results generated by such advanced computer operations or equipment employed have been reviewed by someone familiar with the type of project and that person has the experience and knowledge to evaluate that appropriateness of the result generated by the technology.

CONCLUSION

The future is here. When the average Jane or John, off the street, go into their local consumer electronics store and purchase sophisticated computers more powerful than those used to land a man on the moon, and tools such as GPS for their personal use that ranges from designing a home or locating their favorite hiking trail or getting real time directions to an unfamiliar location, with relatively inexpensive and sophisticated software programs or equipment, the true professional will be expected to have available much more sophisticated systems; and be expected to employ the systems in the manner intended. It is the smart professional who will integrate these advanced "tools" and computer-assisted products into their work product without sacrificing professional judgment. The failure to recognize the exposure or duties imposed by new technology may very well put the design professional in a position to be at the unpleasant cutting edge of new areas of professional malpractice.

About the Author

Michael J. Baker is a partner of the construction/infrastructure practice group at the Irvine, California office for the national law firm of Arter & Hadden, LLP. Mr. Baker is a recognized expert, specializing in the representation of local, national and international owners, design professionals and contractors in business and contractual matters, as well as disputes before mediators, arbitration panels and state and federal courts. This representation has included contract negotiations, bid document preparation, contract performance disputes, surety bond claims, and the full range of insurance issues and claims involving major public and private construction projects, engineering systems and specialized facilities. Mr. Baker can be reached at Arter & Hadden, LLP 949.252.3154 or via e-mail: mbaker@arterhadden.com.

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