Tech Talk: Standard of Care
Feb 1, 2004 12:00 PM, C. William Day
What is “standard of care” and how should it apply to a technology installation? A good working definition of the standard of care of a professional is found in the court opinion, Paxton v. County of Alameda (1953): “That level or quality of service ordinarily provided by other normally competent practitioners of good standing in that field, contemporaneously providing similar services in the same locality and under the same circumstances.”
The educational marketplace is not always aware of this. A school often defines good service more broadly. Standard of care services begin with the school and its needs, not with the skills and technology expertise of the consultant or integrator.
Most consultants do their best to carry out the terms and conditions of their professional service agreements. Occasionally, though, the physical or administrative results as perceived by owners are not acceptable. Schools may feel that consultants have not been sufficiently diligent or have performed some part of their duties at a substandard level.
It is difficult to plan, design and install a comprehensive technology system. Despite the best efforts of talented consultants, mistakes will occur. Consultants are expected to use “reasonable and ordinary care.” It is important to have good communication between the institution and its consultant, so that each is aware of the standard of care.
A good starting point is to draw comparisons to other professions that apply a standard of care. For instance, a surgeon cannot guarantee a perfect procedure or a complete recovery, and an attorney cannot guarantee a favorable judgment or verdict. Instead, the expectation is that they will apply their professional knowledge and experience in a competent manner that best serves the interest of their patients or clients, regardless of the ultimate outcome. Consultants, like physicians and attorneys, cannot guarantee the results of their service. Their liability for errors and omissions will be determined by whether they have performed their services with the standard of care consistent with other professionals in their community.
Case law has determined that when you hire a consultant, you buy the consultant's normal errors. However, if the error is shown to have been worse than a certain level of error, the consultant is liable. That level, the line between non-negligent and negligent error, is the “standard of care.”
Even when the standard of care is agreed upon, financial recovery may hinge on whether the mistake was an error or an omission. Omissions usually add value to a project. Instead of being included at the time of contract award, the improvement that was “omitted” from the bid package is picked up by a change order.
The best standard of care a consultant can provide is to get the school and its representatives involved early in the technology planning process. It is much easier to write a change in a spec than to write a change order.
Day is senior analyst at KBD Planning Group, Bloomington, Ind., a firm specialized in educational facilities and technology planning. He can be reached at bday@kbdplanning.com. www.kbdplanning.com
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