There is a distinct difference between "errors and omissions" and "malpractice" The two terms are not interchangeable, but unfortunately are often treated as if they are. As an Architect, you are not insured for "errors and omissions", instead, like any professional, you are insured for "malpractice.
The simplest definition of "malpractice" is drawn from standard jury instructions. Although these vary a bit from state to state, in general the definition is "failing to that which an average, similarly situated Architect of similar training, education and experience, practicing in the same or a similar locale would do" or - in the alternative, "doing that which the average similarly situated Architect of similar training, education and experience, practicing in the same or a similar locale would not do. In sum the standard of care demands that you be average.
Your insurance covers you for inadvertent failure to meet the standard of care - inadvertent failure to be average.
While an error can be a breach of the standard of care, since the average Architect may make a few errors, an error is not per se a violation of the standard of care. If the average Architect may have made the error in question then it isn't malpractice (with malpractice being defined as a breach of the standard of care which causes physical or economic injury). In reality, most errors likely do constitute malpractice, but that isn't necessarily the case in every instance.
Omissions on the other hand are quite different. The law generally provides that the Owner does not get anything for free. Therefore, if an element that is required is omitted, the cost of adding that element is the Owner's responsibility irrespective of whether the average Architect would or would not have omitted it (yes - many Owners fail to appreciate that fact). Damages in the case of an omission would be limited to the additional cost to add the omitted element in later, if there are any. The law of damages essentially places the damaged party in the position he or she would have been in had the omission not occurred - it is not an excuse for an Owner to receive benefit at no cost. Had the omitted element been included (i.e.; had it not been omitted) then the overall cost would have been coordinately higher in the first instance such that the Owner would have paid for that element.
An Owner in a situation where he or she is paying for an omitted item has not been damaged in the legal sense. As legally cognizable damages are an integral element of malpractice (there can't be malpractice unless there is a legally cognizable injury), no malpractice has occurred in the case of an omission (at least for most of those cases) because the Owner hasn't suffered damage - he or she has just been deprived of an opportunity to reap a windfall due to the omission.
While it may be rare, it is also possible that an error did not cause any injury. Thus, the mere commission of an error does not automatically constitute malpractice to any greater degree than an omission would
As for the AIA code of ethics, some arguments can be made that conduct which violates certain sections constitutes malpractice, but nothing is "automatic". In those instances it would be necessary to again conduct the average similarly situated Architect analysis, which insofar as malpractice is concerned is always the touchstone.
It is a misnomer to call A/E insurance "errors and omissions" insurance. It is instead malpractice insurance, the same as it is for any other professional. That is a distinction without a lot of difference in some senses, but it does tend to imply that omissions trigger the insurance coverage, where for the most part they don't.
It isn't as nebulous as it may seem. That said, since the definition is a product of state law, and since the law in every state is a little different, I don't think a national definition would be of much practical use. To the contrary, it may add to the confusion by creating the perception that a certain definition applies in every state where that definition may not be coordinate with the laws in that state.
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Frederick Butters FAIA
Attorney
Southfield MI
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Original Message:
Sent: 12-27-2010 11:29
From: James Drebelbis
Subject: definition of errors and omissions.
For the last 18 years my practice has focused on buildings conditions and expert witness work. I've been deposed about 70 times and have participated in numerous legal suits for and against Architects.
I believe you raise a valid question, I agree that E&O should not be confused with professional negligence (note that our mistakes are not called malpractice). E&O covers something that was done, or not done, in the process of providing professional services that results in financial or physical harm, i.e., something that you get sued for. (My observation not a legal definition)
Professional negligence addresses whether the act was a violation of the AIA Code of Ethics, or normal practice, or the state's Practice Act. I've observed that both E&O and professional negligence can occur, but do not necessarily have to. In writing Certificates of Merit I identify acts that specifically violate ethical codes and try to distinguish them from "garden variety" goofs on the part of the professional.
I would say, however, that in the cases that involve rampant E&O there is plenty of professional negligence.
It appears to me that plaintiff attorneys want to exaggerate their cases. And defense attorneys want to minimize the infractions. The truth often lies in the middle. I eventually learned that attorneys are not infallible in their understanding, particularly of a profession that is as complicated as Architecture and Engineering. Our job as experts is to define the boundaries, teach, and to the extent possible remain objective.
Some nebulous clarification by the AIA might be helpful though.
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James Drebelbis AIA
Drebelbis Engineering
Dallas TX
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