Malpractice: is the sky falling?

Introduction

"Librarians are always talking about being professionals just like doctors and lawyers ... but when they prescribe the wrong medicine, when there is as a result great injury, ... why, that's malpractice, just as certainly as it's malpractice when a doctor removes a kidney when he should have removed the gall bladder."(1)

These words are from Allan Angoff's often quoted 1976 article on "information malpractice." Angoff created a fictitious scenario where a reference librarian was sued for malpractice. The plaintiff, a patron, claimed injury due to the faulty information received from the librarian. Angoff's all too plausible scenario sparked a lengthy discussion regarding the legal liability of providing information.

Many librarians feel the threat of malpractice is real. A recent survey of law and medical librarians found that over half felt a moderate concern that they might be sued for malpractice.(2) Yet, as Wan reports, "In spite of concern about malpractice lawsuits, no librarian has actually been sued for personal malpractice."(3, 4) It has been 20 years since Angoff's article. Yet, despite the logic of his argument, no suits have appeared. Why haven't we been sued?

What is Malpractice?

Black's Law Dictionary defines malpractice as: "Professional misconduct or unreasonable lack of skill ... Failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss or damage to the recipient of those services...."(5)

Malpractice is a tort. Torts concern actions that cause harm to an individual. This differs from criminal law where the act is considered to be against society. Malpractice revolves around proving negligence. "Negligence is essentially the law of carelessness. It rests upon the assumption that each of us owes what is called a 'duty of care' to those who might be affected by careless actions on our part."(6) A duty of care is universal and must apply to all members of the community. If the courts establish a duty of care for librarians, the standard must apply to all librarians in all situations for all customers. In the law of Contracts, this duty exists only between the individuals named in the contract. The duty is unique and spelled out by the agreement.

The greatest number of malpractice claims are fried against physicians. However, in increasing numbers, other professionals, such as lawyers or architects, are finding themselves targets of litigation. Malpractice only applies to members of a recognized profession. How do the courts determine who is a professional? Generally, they consider a professional as "one having a peculiar skill."(7) They examine the necessary degree of education, establishment of peer organizations, and the creation of standards. Librarians appear to meet the criteria. We possess a unique skill that requires extensive post-graduate training. Librarians may join a wide range of long-standing, internationally recognized organizations. These groups often issue standards. For example, the Reference and Adult Services Division (RASD) of the American Library Association publishes guidelines for reference and information services.(8)

Malpractice covers a very specific range of actions. Users may bring libraries to court for a variety of reasons, including copyright infringement, negligence (i.e., slipping on the floor, tripping on an electrical cord), discrimination, defamation, etc. However, these offenses are not malpractice. Malpractice may occur when the information a librarian provides causes an individual to suffer harm. The idea that the action must cause some type of loss or injury is important in determining malpractice. "Does it make a difference whether the question I answer incorrectly is 'How high is Mount McKinley?' or 'What information can you provide me on the establishment of my own business?'"(9) In malpractice, one may only sue if they experience a tangible loss or injury. So far, dissatisfaction and inconvenience are not grounds for litigation.

Many people mistakenly believe they may only be sued if they charge for their services. Malpractice does not depend on money changing hands. In cases involving bodily injury, the economic arrangements may be irrelevant. The Official …