Under the doctrine of professional malpractice, one who is deemed a professional will owe the other party a duty to act not just as a reasonable person under the circumstances, as required by negligence law, but to meet a higher standard — that of a professional in that particular field of endeavor.
The concept of professional liability has generally been applied to those who by specific training and licensing are deemed to have a level of skills higher than those of non-professionals. Those persons falling within the realm of professional responsibility include doctors, lawyers, dentists, architects, accountants and similarly licensed workers.
To date courts have been reluctant to hold computer designers or programmers to the higher standard of professionals due to the lack of “established educational standards or regulations governing the performance of software programmers and developers, and they are not licensed as professionals.” As noted in one early case:
|“||The novel concept of a new tort called “computer malpractice” is premised upon a theory of elevated responsibility on the part of those who render computer sales and service. Plaintiff equates the sale and servicing of computer systems with established theories of professional malpractice. Simply because an activity is technically complex and important to the business community does not mean that greater potential liability must attach. In the absence of sound precedential authority, the Court declines the invitation to create a new tort.||”|
In Hospital Computer Systems, Inc. v. Staten Island Hospital, the court refused to hold a computer programmer to a professional standard, stating:
|“||A profession is not a business. It is distinguished by the requirements of extensive formal training and learning, admission to practice by a qualifying licensure, a code of ethics imposing standards qualitatively and extensively beyond those that prevail or are tolerated in the marketplace, a system for discipline of its members for violation of the code of ethics, a duty to subordinate financial reward to social responsibility, and, notably, an obligation on its members, even in non-professional matters, to conduct themselves as members of a learned, disciplined, and honorable occupation.||”|
Other courts have refused to recognize computer programmers and consultant as professionals, since “[t]o lift the theory of malpractice from its narrow origin of personal, professional services to a lay patient or client and apply it to the law of commercial contracts would obfuscate the necessary boundaries of these two areas of law.”
- See 4 S. Speiser, C. Krause & A. Ganns, The American Law of Torts, ch. 15 (1987) (enumerating the professions where malpractice liability has been imposed).
- Lawrence B. Levy & Suzanne Y. Bell, "Software Product Liability: Understanding and Minimizing the Risks," 5 High Tech. L.J. 1, 10 (1990).
- Chatlos Sys., Inc. v. National Cash Register Corp., 479 F. Supp. 738, 740 n.1 (D.N.J. 1979)(full-text), aff’d in part, remanded in part on other grounds, 635 F.2d 1081 (3d Cir. 1980)(full-text), cert. denied, 457 U.S. 1112 (1982).
- 788 F. Supp. 1351 (D.N.J. 1992).(full-text)
- Id. at 1361.
- Columbus McKinnon Corp. v. China Semiconductor Co., Ltd., 867 F. Supp. 1173, 1182-83 (W.D.N.Y. 1994).(full-text)