Must a professional engineer follow the most current structural design criteria? Where does adherence to current standards end and the exercise of professional judgment and discretion begin? Does failure to follow current criteria, or standard, constitute unethical conduct?

These issues were recently the subject of a case considered by the National Society of Professional Engineer’s (NSPE) Board of Ethical Review (BER). In BER 02-5, Engineer A, a structural engineer was involved in the design of the structural system in an area of the country that experienced severe weather conditions. Engineer A designed a building’s structural system based upon what Engineer A believed constituted sound structural engineering principles. Although Engineer A had good knowledge and experience in structural design, new and improved design methods had recently been developed to address severe weather conditions in the location in which Engineer A practiced. The new severe weather design criteria had been published in the most recent technical literature. While Engineer A attempted to stay current on changing structural design trends, Engineer A was not familiar with the new criteria. Within one year following construction, severe weather conditions caused significant structural damage to the building. It was later determined that had Engineer A followed the new design criteria, the structural failure would probably not have occurred.

For the NSPE Board, the question posed was whether it was unethical for Engineer A to fail to follow the recent design criteria. Examining the issue, the Board cited several provisions of the NSPE Code of Ethics including references to Engineer A’s obligation to protect public health and safety, approving engineering documents in conformity with applicable standards, performing services only in one’s area of competency, and other relevant code sections.

As with any profession, engineers have a fundamental ethical obligation to practice in a professional and competent manner. The determination of whether an engineer is practicing in a competent manner can only be determined on the basis of all of the facts and circumstances involved in a particular situation. It is often based on the local standards, the time period in which the individual is practicing, client-imposed requirements, and various other considerations.

In Case 02-5, the Board concluded that a fundamental question was whether the performance of engineering design work that may result in a failure is unethical per se? The comment is often made that “in medicine, physicians exercise personal judgment that sometimes cause patients to die, and in the law, attorneys exercise personal discretion that cause clients to lose lawsuits.” In those circumstances, physicians and attorneys are not generally considered to be unethical without more facts and circumstances to demonstrate that the individual’s actions were improper.

The Board stated that ethical impropriety does not necessarily occur when an engineer designed a facility that fails. But even where an engineer is found negligent, should that mean that the engineer was acting in an unethical manner?

Clearly, there is a distinction between ethical issues and legal issues. It is critical for engineers practicing in a specific area to maintain current knowledge about new practice developments and incorporate those methods, as appropriate, into their professional practice. But how far it is necessary for an engineer to go in order to remain current? What is the definition of “current?” Would this require knowledge of and incorporation of each and every recent practice development, design parameter, etc.?

While the Board recognized that in some situations it may be necessary for an engineer to follow the most recent practice developments and design parameters in order to protect public health, safety, and welfare, in Case 02-5, the Board did not conclude that the facts in this case would reach that threshold. It was the Board’s view that in order for an engineer to be found unethical for a design failure, the engineer must demonstrate some level of “moral culpability.” In other words, there must be some demonstration that the engineer was acting in an intentional, reckless, or malicious manner. If the engineer was reckless or refused to take appropriate action, such as consciously ignoring relevant technical information, the Board might have concluded that the engineer acted in an unethical manner. But the mere fact that an engineer did not follow the most recent literature and some harm resulted was insufficient, in the Board’s view, to find the engineer to be deemed to have acted unethically.

Arthur E. Schwartz serves as a deputy executive director and general counsel for the National Society of Professional Engineers. He provides individualized ethics training programs to engineering companies and organizations of all sizes and areas of practice. For more information on the scope of services and costs, contact him at 703-684-2845 or at aschwartz@nspe.org. Visit www.nspe.org for more information on this or other ethical matters.