Claims Retrospective: Determining Whether an Error Caused Any Damage Is Important in Deciding How to Discuss It with Others
By Sarah A. Johnson, Esq.
Design professionals, like all humans, are imperfect and make mistakes. However, such mistakes, or errors and omissions, do not always lead to damage or deficiency. Indeed, we have seen instances where errors or omissions have had no effect on the ultimate outcome of a project and, in some instances, have even resulted in a more conservative design or over-design.
While these types of errors often provide opportunities for learning and growth, they should not be the basis of claims against the design professional. In order for the engineer to be held liable under either a breach of contract or negligence theory, the engineer’s error must actually cause some sort of damage. However, engineers, being rightfully concerned about any errors, are often quick to express remorse for errors before they know if they have caused damages, or even when they know that they have not caused any damages.
How the engineer approaches such errors may determine whether the engineer will face a claim or simply learn from his or her mistakes and move on to the next project. Attempting to cover up or hide an error usually backfires, leaving clients and other project participants frustrated and even angry, and thus is not advisable. Accordingly, do not mistake the message herein for one of avoidance or denial of errors or omissions.
Instead, it is best practice for an engineer to approach errors calmly and determine what, if any, effect the error will have on the project prior to approaching the client or other project participants. Obviously, if an error has rendered something unsafe or has the potential to make the project more expensive and/or lead to significant delays, the engineer should take the appropriate action to halt the project or provide immediate information as necessary. Otherwise, however, it is best to obtain answers, explanations, and solutions prior to discussing an error with others.
When discussing an error with others, the engineer should arm himself or herself with information to diffuse the situation and explain why the error is ultimately not a concern for the final product.
Keep in mind, however, if the engineer acts hastily and his or her comments can be construed as an admission of liability, the engineer is more likely to face a claim wherein those comments are utilized to show that the engineer has admitted fault. Further, the engineer may jeopardize their professional liability insurance coverage as those policies typically prohibit the insured engineer from admitting fault without the insurer’s written consent (with certain exceptions).1
If the engineer is lucky enough to have made an inconsequential error, he or she should take caution not to make themselves a target by panicking and falling on their sword without the proper information. While errors can be startling and are naturally a cause for concern, it is important to remember that an error without resultant damage does not create liability, and to approach the situation in a manner that recognizes the possibility of a lack of liability.
1On the other hand, professional liability insurance carriers typically provide pre-claim assistance, and utilizing this assistance can be beneficial upon discovery of an error. Engineers should consider contacting their insurance carrier upon discovery of an error or omission and certainly prior to discussing said error with any other party.
