Try to describe to an inexperienced engineer or architect how to know when his or her services have reached a legally acceptable level of quality.The exercise may generate more questions than answers. Acceptable to whom? Acceptable enough to avoid a claim?

to qualitative concerns in performing a scope of services such as code compliance, originality or ingenuity, balancing function versus cost, the absence of ambiguities and errors, constructability, and the like. This quality is reflective of a professional’s competence and judgment when performing a quantified scope of services.

The short, easy, and correct answer to the questions posed above is when services and deliverables meet the applicable professional standard of care. Then what is the standard of care that applies? What governs professional services? The first step to understanding the standard of care is knowing where it fits within applicable law. The law recognizes only a handful of "true" or "learned" professions. They are, generally, physicians, lawyers, architects, engineers, and accountants. True professions have higher educational requirements, include regulation of practice standards through licensure, and maintain continuing education requirements.

Another critical distinction from non-professionals is in what a professional provides—services with the goal of achieving a desired result, but not an assured result. For example, one pays a physician to evaluate an illness and prescribe the correct treatment, but a physician lacks the control over the patient’s body necessary to ensure a cure.

Similarly, design professionals are paid to provide competent and accurately documented design solutions, but they lack the control necessary to ensure that a building of particular qualities will, in fact, be built properly.

The body of law governing design (and other "learned") professionals recognizes these limitations. It focuses on two aspects: whether the professional provided the quantified scope of services, and the quality of the professional’s services, rather than a certain outcome.

The applicable standard of care In basic terms, the standard of care for professionals is the level of competence practitioners in their field customarily expect given the circumstances.

Breach of the standard of care (failing to live up to the applicable benchmark of quality) provides the basis for a claim.

One court explained professional negligence, or breach of the applicable standard of care, as "Professional negligence in the context of engineering services means doing that which an engineer of ordinary prudence in the exercise of ordinary care would not have done under the same or similar circumstances, or failing to do that which an engineer of ordinary prudence in the exercise of ordinary care would have done under the same or similar circumstances." Thus, the standard of care establishes the requisite benchmark for the care that the design professional must exercise in providing professional design services.

The standard at law for tort claims, such as negligence and negligent misrepresentation, is ordinary prudence or care.

Parties also may define in a contract the standard of care with which a scope of services must be performed. A standard of care that is higher (or lower) than ordinary or customary care of the profession may be established. Consider the following examples:

• The engineer shall exercise the highest and best practices of the profession.
• The engineer shall complete its services as efficiently as possible in the best interests of the owner.
• The engineer warrants that all work performed shall fully comply with all federal, state, and local laws, codes, rules, regulations, and restrictions applicable to the project.

In the first two examples, the standard of care is not mentioned, but a benchmark of perfection is required, nonetheless.

The third example is an uninsurable warranty and raises the benchmark for code compliance to include proficiency in any codes applicable to the project, such as OSHA regulations.

We all hope to do our best, but it is not what the law requires of professional practice unless the design professional agrees to a higher standard in the contract. More important, errors and omissions insurance does not provide coverage for a duty to perform services beyond ordinary or customary professional care.

Controlling the definition of the standard of care is only half the equation.

Part 2 of this series will explore how proof of compliance with the standard of care is presented at trial.

John R. Hawkins is a partner in the Houston-based law firm of Porter & Hedges. He can be reached at jhawkins@porterhedges.com.