Understanding the Liabilities of The

Information Malpractice:

Understanding the Liabilities of the

Independent Information Professional (IIP)[1]

Vincent DeCaen

“Malpractice lawsuits can happen to you! It can happen to independent information professionals, like information brokers or consultants … . I know, because it happened to a friend of mine already” (Ebbinghouse, 2000, p. 66, italics original). Hitherto, there had only been the much-cited warning of Felsky (1989): “Brace yourself for the next stage: information science malpractice insurance” (rule 10, p. 14). Felsky has been derided as a Chicken Little in some quarters; Cremieux (1996), for example, asks, “Why haven’t we been sued?” and answers smugly,“Proving malpractice is difficult”(p. 153). Halvorson (1995), however, counters that in fact it has happened, citing a case in Germany (p. 3). He goes on to explain that the independent information professional (henceforth, IIP) is encountering legal difficulties in pursuing delinquent clients: the delinquents are counterclaiming for poor work, i.e., malpractice (p. 3), as in the case cited by Ebbinghouse (2000). It is only a matter of time, opines Halvorson (1995), before such cases work their way up the legal food chain and produce case law (p. 3).

This paper examines the issue of legal liability and malpractice with special attention to the case of the IIP. By way of background, frequently cited examples of what Feldman (2004) calls “information disasters” are introduced. Various trends in the profession are then examined to understand the growing threat of liability, especially for IIPs. A section is devoted to tort law as it applies in the case of information malpractice. Another section explores the principal weapons of the information professional against litigation: the disclaimer and malpractice insurance. The conclusion offers general considerations on risk management for the IIP.

1. Information Disasters

The term “information disaster” appears to be original with Feldman (2004). Instead of an explicit definition, she offers the case of the Mars Orbiter disaster, in which the orbiter went missing in the fall of 1999. Crucially and fatally, the calculations were made in imperial versus metric units, and the spacecraft was lost. “A costly information disaster. And an embarrassing one” (Feldman, 2004, ¶ 1).

A more recent information disaster cited by Feldman (2004, ¶ 4), in this case a deadly one, is the disturbing medical case at Johns Hopkins in the summer of 2001. An otherwise healthy volunteer died from inhaling hexamethonium as part of medical research. Researchers had been led to believe that this chemical was not toxic based on a faulty survey of medical publications. They relied principally on PubMed which only went back to 1966, whereas the fundamental research had been conducted in the 1950s (¶ 4). Subsequently, the government suspended all research contracts and grants involving human subjects at Johns Hopkins, the largest medical school recipient of such moneys (for further details and discussion, see Perkins, 2001).

The classic information disaster cited by sources (Hannabus, 2000, p. 320; Cremieux, 1996, p. 150; Puckett & Craig, 1993, pp. 159-160) led to the bankruptcy of Greenmoss Builders in the United States. Dun and Bradstreet was and remains a major source for company information. Its data indicated that Greenmoss was in “administration” (had declared bankruptcy and was in the hands of the courts), and creditors and shareholders acted accordingly, ironically leading to actual bankruptcy. Dun and Bradstreet was successfully and deservedly sued in this case.

The list of disasters is long and growing. “Information disasters are a growing threat,” writes Feldman (2004),“and one that few businesses can ignore” (¶ 2). Wrong information, outdated information, too much information, missing or incomplete information: the central problem is that information is scattered among multiple databases and repositories with no overall inventory or single access point (¶ 4). “Information disasters are caused not by lack of information, but rather by not connecting the right information to the right people at the right time” (¶ 17). Feldman concludes her discussion by warning that the “cost of not finding information is simply too high” (¶ 18).

2. Trends: Increasing Vulnerability of the IIP

The dark side of the increasing professionalism of information professionals is professional misconduct and negligence, or simply malpractice. Felsky (1989) warns that increasing professionalism means that courts are more likely to find information professionals liable for negligence (p. 2). “Arguably, the higher the expectation of exclusivity and expertise, and the higher the financial consideration for it, the higher the standards are” (Hannabus, 2000, p. 319).

“Any organization whose professional employees provide advice, expertise, information or a consultancy service may be legally liable for a claim of malpractice where a breach of professional duty occurs” (Pedley, 2003, p. 159). The key element here is professional: who is a “professional”? “A professional can be characterized as one who has specialized education and training; possesses specialized knowledge; participates in an uniquely recognized social service; and is subject to rules created by a self-governing organization with a code of ethics”[2] (Puckett & Craig, 1993, p. 148). While Puckett & Craig (1993) argue that the jury is still out regarding librarians (p. 148), Cremieux (1996) concludes with the majority that “[l]ibrarians appear to meet the criteria [of an organized profession]” (Cremieux, 1996, p. 148).

Hannabus (2000) alerts information professionals to another source of legal difficulty: “the trend towards commodifying information” with privatization and commercialization (p. 316). Crucially, information is taking on the characteristics of a “private good” that can be bought and sold on the same conditions of, for example, a car, and subject to the same laws that govern contracts, liability and negligence (p. 316). Accordingly there is civil liability in connection with contracts and the breach thereof, but also liability for negligence under the law of torts (pp. 316-317). Hannabus concludes that arguably “the increasing commodification of information products and services, the growth of electronic information availability, and increased professional awareness about liability and insurance, has placed information liability centre stage in professional practice” (p. 317).

Furthermore, IIPs are self-employed, “making the onus of care greater still” (Hannabus, 2000, p. 317); by running their own businesses, IIPs “take personal liability for information products and services” (p. 329, italics mine). While public librarians appear to be exempt generally under federal and provincial laws, and special librarians are afforded some protection under the aegis of their parent organization or company (respondeat superior, the employer is responsible), an independent “broker is in a very different position” (Cremieux, 1996, p. 151). IIPs solicit business, charge fees, put themselves forth as experts and therefore create higher expectations.

In passing it is also worth stressing that the IIP is more likely to summarize and synthesize information for a client, which may be viewed as “creating a product” versus providing a “service,” hence falling victim to the law of strict liability in which the “author” assumes full (strict) liability for content, including accuracy (see especially Cremieux, 1996, p. 152).

3. Tortious Negligence and Malpractice

“While one would never suggest that information specialists are particularly susceptible to malpractice suits today, there are a couple of reasons why it might not hurt to be informed of the potential dangers” (Felsky, 1989, p. 2). Malpractice here, to be clear, means professional misconduct, a type of negligence arising from a duty of care, hence covered by the law of tort under “tortious liability”: a civil wrong independent of a breach of contract. (Crucially, this duty of care is also independent of money actually changing hands!)

A brief description of liability is offered here with reference to the information professional. A consideration of the special case of the IIP is then appended.

A claim for liability, flowing from negligence theory, involves four basic elements, described in idiosyncratic terms by several sources (see first Puckett & Craig, 1993, p. 145; see further, e.g., Pedley, 2003, p. 163; Cremieux, 1996, p. 149). These can be distilled as follows.

• duty of care
• breach of duty
• causation
• harm

A duty of care exists where a tangible loss or injury to another is possible; in such a case, a person is expected to take action against unreasonable risk. There is a concomitant standard of care defined in law as what a reasonably prudent person would do in similar circumstances in light of reasonably foreseeable harm.A person is judged careless according to this standard, or in breach of duty, regardless of intentions.

The remaining elements are straightforward. There must be some actual versus potential harm—either personal or financial harm.Further, it must be shown that the information professional is the proximate cause, in other words, that the harm is the direct result of misconduct.

“It should be realized though, that the standard of care may be higher for professionals” (Puckett & Craig, 1993, p. 145). “[P]rofessionals are liable to their clients and even to people who are not their clients, if their work falls below a certain expected level of expertise” (Felsky, 1989, p. 7, italics mine). The standard of care in the case of the information professional is “what a member in good standing in the profession would have done under similar circumstances” (Puckett & Craig, 1993, p. 155). Crucially, the standard is not perfection, but what reasonable members of the profession would generally do. (The interesting technical question is, what is that standard? Cremieux (1996) claims that the “absence of a fair universal standard [in information science] makes establishing malpractice difficult” (p. 152).)

As was noted above, the fee-for-service IIP is in a unique position and the question of liability that much more urgent. “The question of duty in the literature becomes quite clear when the discussion of potential liability involves the information professional who charges a fee for services,” note Puckett & Craig (1993, p. 154). Fees create a different relationship: a contract for a good. “Information specialists hold themselves out as experts and are being paid for theirexpert knowledge” (p. 154, italics mine), and as such create different expectations for their clients (read, makeimplied claims; see below).

4. Preparing for the Worst: Disclaimers and Insurance

A quick excursus into the defence against the dark arts is offered here. IIPs have often thought that incorporation (and now limited liability partnerships) will take care of liability, but this is only partially true; incorporation protects personal versus corporate assets in an action, but in no way limits liability for negligence (Halvorson, 1995, p. 8). Other popular prophylactics include explicit disclaimers and malpractice insurance, to which we now turn.

“One of the most popular options of defense against negligence liability is the disclaimer statement,” confirm Puckett & Craig (1993, p. 162). As Halvorson (1995) explains, a disclaimer negates a “claim,” otherwise known as a warranty or representation (p. 9). A disclaimer guards against claims that a client might reasonably infer from an agreement. Even more important, a disclaimer excludes claims that the law will certainly infer (regardless of the client’s understanding), known specifically as implied warranties; examples here might include elements of the higher professional standards noted above (Felsky, 1989, p. 7). The implied warranty“is the chief area of efficacy of disclaimers” (Halvorson, 1995, p. 9).

Felsky (1989) sets forth the basics elements of the disclaimer in his Rule 2. “If you are drafting a contract, insert a brief disclaimer. Four points: Limit your own liability for negligence (you are providing information not advice); limit your liability in the case of database errors or omissions (you are not responsible for negligence of online systems); limit your liability in the case of limitations placed on you by your client (time or money); exclude liability to non-clients” (pp. 13-14). An extended disclaimer is appended to Halvorson (1995) by way of an excellent example drafted by a lawyer.

The disclaimer is a tool in managing client expectations, but there is no certainty that it can protect against liability suits (Puckett & Craig, 1993, p. 162). Felsky (1989) similarly warns that “it should be understood that no disclaimer is guaranteed to be effective. Its effectiveness in excluding liability depends on all the circumstances” (p. 7). With specific reference to IIPs, Halvorson (1995) also notes that “[c]onversations among IIPs exhibit an unwarranted degree of faith in disclaimers” (p. 9).

Regarding malpractice insurance, two things may be noted. First, there is malpractice insurance available, known as errors or omissions insurance (E&O). The typical E&O policy reads: “covers claims arising out of acts, errors or omissions in the rendering or failure to render professional services, for others in the conduct of the insured’s profession” (Puckett & Craig, 1993, p. 161). Second, costs of such insurance are rising for two reasons. In general, there is the pandemic of malpractice suits, especially in the US. “In an increasingly litigious society, we are encountering what has been called a crisis in liability and insurance coverage” (Felsky, 1989, p. 1, citing Knoppers, 1988). There is also the knock-on effect of 9/11; Pedley (2003) notes that in some sectors the jump is over 200% (p. 170).

Despite the costs and uncertainties of obtaining insurance, Pedley (2003) strongly suggests that the IIP talk to an insurance broker. “Self-employed information consultants and brokers should consider taking out professional indemnity insurance” (p. 159). This is clearly the case where advice is being offered that might result in loss or injury. Pedley concludes that “in the case of freelance workers it makes sound business sense and should not be regarded as an expensive or unnecessary business overhead. Furthermore, for freelance workers the premiums are tax-deductible” (p. 170).

5. Conclusion: Risk Management

This paper began by introducing the notion of information disaster, and then touched on trends that are increasingly exposing information professionals to liability in such disasters. An outline of tort law explained what it means to be negligent; professional negligence or malpractice clearly is a danger for the IIP. Disclaimers and insurance are two ways that IIPs have tried to defend themselves against liability.

Interestingly, Cremieux (1996) suggests that the threat of litigation might be a good thing. “The discussion of litigation against librarians suggests a maturing of people’s view [sic] regarding information science. We do have an impact” (Cremieux, 1996, p. 153). This suggestion serves to highlight the offsetting responsibility that comes with increasing professionalism.

The best defence against litigation, according to Pedley (2003), is still prudent risk management (§8.7, pp. 167-169). This amounts primarily to professional development and keeping up-to-date (cf. Hannabus, 2000, p. 318; Felsky, 1989, Rule 5, p. 14). Even more basic, the best risk management is not doing anything stupid. “If a librarian is reckless, the librarian will be held accountable. Nevertheless, what saves librarians is that we are not reckless, and there lies the key” (Cremieux, 1996, p. 153).

Appendix: AIIP Code of Ethical Business Practice[3]

An Independent Information Professional is an entrepreneur who has demonstrated continuing expertise in the art of finding and organizing information. Each provides information services on a contractual basis to more than one client and serves as an objective intermediary between the client and the information world.

An Information Professional bears the following responsibilities:

• Uphold the profession's reputation for honesty, competence, and confidentiality.
• Give clients the most current and accurate information possible within the budget and time frames provided by the clients.
• Help clients understand the sources of information used and the degree of reliability which can be expected from those sources.
• Accept only those projects which are legal and are not detrimental to our profession.
• Respect client confidentiality.
• Recognize intellectual property rights. Respect licensing agreements and other contracts. Explain to clients what their obligations might be with regard to intellectual property rights and licensing agreements.
• Maintain a professional relationship with libraries and comply with all their rules of access.
• Assume responsibility for employees' compliance with this code.

Bibliography

Bates, M.E. (2003). Ethics and legalities. In Building and running a successful research business: A guide for the independent information professional (Reva Basch, ed., chap. 15, pp. 183-196). MedfordNJ: Information Today.

Cremieux, K.A. (1996). Malpractice: Is the sky falling? Special Libraries [SLA], 87, 147-155.

Ebbinghouse, C. (2000). Disclaiming liability. Searcher, 8(3): 66-71.

Feldman, S. (2004). The high cost of not finding information. KM World, 13(3). Retrieved November 20, 2006, from

Felsky, M. (1989). The legal liability of information professionals. Canadian Journal of Information Science, 14(3), 1-15.

Halvorson, T.R. (1995). Selected aspects of potential legal liabilities of independent information professionals (2nd ed.). HoustonTX: Burwell.

Hannabuss, S. (2000). Being negligent and liable: a challenge for information professionals. Library Management, 21(6): 316-329.

Pedley, P. (2003). Professional liablity. InEssential law for information professionals(chap. 8, pp 158-171). London: Facet.

Perkins, E. (August 07, 2001). Johns Hopkins’ tragedy: Could librarians have prevented a death? Retrieved December 10, 2006, from Information Today Inc. NewsBreaks

Puckett, M., & Craig, J.P. (1993). Information malpractice. In Encyclopedia of library and information science (Vol. 52, Suppl. 15, ed. A. Kent & C.M. Hall, 141-167). New York: Marcel Dekker.

Special Libraries Association. (1992). Malpractice issues in librarianship: An SLA information kit. WashingtonDC: SLA. [A collection of older but seminal papers referred to by the sources listed here.]

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[1]DISCLAIMER: The author, Vincent DeCaen, is not, and has never claimed to be, a lawyer or paralegal; nor has he at any time received legal training, and is not able to give legal advice. Nothing in this paper is intended to be taken as a legal opinion, and it should not be relied on in that way. It is offered for educational purposes only, as a general discussion of liability issues facing independent information professionals, in partial fulfillment of requirements for FIS 3125 (University of Toronto, fall 2006). While information provided is compiled from sources believed to be reliable, the author makes no representation or warranty, express or implied, as to its accuracy, completeness or correctness. The author suggests that the reader contact legal counsel for legal interpretations, opinions and advice pertaining to the reader’s particular circumstances.

[2] The Special Libraries Association (SLA) does not have its own code of ethics,arguing instead that, in general, members have felt that their organizational environments have already set forth the work ethics by which they are guided. An SLA FAQ sheet refers to other associations and their codes ( including the Association of Independent Information Professionals (AIIP.org). The AIIP code is provided below as an appendix.

[3]Retrieved December 14, 2006, from (N.B. Approved by the membership May 5, 1989, at the Third Annual Meeting, Lowell, MA. Amended by the membership April 22, 1990, at the Fourth Annual Meeting, San Francisco, CA. Amended by the membership April 18, 1997, at the Eleventh Annual Meeting, Orlando, FL. Amended by the membership April 24, 1999, at the Thirteenth Annual Meeting, Berkeley, CA. Amended by the membership April 20, 2002, at the Sixteenth Annual Meeting, Long Beach, CA.)