Vicarious Liability Can Lead To Ethical Violations

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Professional engineers who affix their seal to plans for a structure must proceed with caution. The engineer may become liable for subordinates’ or other licensees’ mistakes. Therefore, professional engineers must take every precaution to make certain that subordinates’ plans as well as plans drafted by other licensees satisfy the standards in the profession. Failure to do so may have disastrous results, including revocation of license, suspension, probation, or censure. Missouri professional licensing attorney Danielle Sanger possesses vast experience in defending professional licensees whose ethical violations are based upon vicarious liability.

One of the greatest engineering tragedies occurred in Missouri. On July 17, 1981, the fourth and second floor walkways collapsed in the Hyatt Hotel. There were approximately 2000 people present. The collapse killed 114 and injured 186. At the time, this was the costliest structural collapse in United States’ history in terms of lives lost.  The Missouri Board of Architects, Professional Engineers, and Land Surveyors (“the Board”) instituted disciplinary action against the engineer in charge of the project. The engineer, Gillum, was found vicariously liable for the “acts and omissions” of another engineer when he affixed his seal to the plans, thus signifying his approval of the final construction plans.  Gillum was also found grossly negligent for not reviewing the subordinate engineer’s plans personally.

Gillum appealed the ruling. He argued that he cannot be found vicariously liable for another engineer’s actions. The appeals court disagreed. The court held that vicarious liability is based upon the relationship of the parties and, as a matter of public policy, one party is responsible for the “acts or omissions” of the other party. This holds true even if there is no wrongdoing on behalf of the party found to be vicariously liable. The court found that Gillum could not delegate his duty to ensure a structurally sound building once he affixed his seal to the plans. Thus, Gillum assumed responsibility of the entire project by signing off on the plans without a specific disclaimer.  The court stated that the thrust of disciplinary action is not necessarily punishment but rather protection of the public.  Accordingly, the disciplinary action levied against Gillum was appropriate for the subordinate engineer’s negligence.

Vicarious liability does not attach in every circumstance despite the engineer affixing his seal. The Missouri Supreme Court vacated the Board’s finding of suspension against an engineer, Bird, who approved final plans with his seal. The Missouri Supreme Court held that, upon review of the record, Bird discharged his duty as he was obligated to by statute. Bird was hired by a firm to complete a project and submit final plans after the firm had a financial dispute with the architect they initially hired for the project. The architect refused to place his seal on the plans. Bird reviewed all of the plans, performed the appropriate computations, and made the necessary changes to the plans. Bird affixed his seal approving the entire project.

The Board found that Bird failed to supervise the original architect and therefore was subject to discipline. The Missouri Supreme Court disagreed. The Court held that the statute merely delineated personal responsibility to Bird for the project and does not obligate one licensee to supervise another licensee. In reaching that conclusion, the Missouri Supreme Court stated that an engineer is only responsible for the work of an unlicensed person who is directly supervised by the engineer and not another licensee. Therefore, the Court found that Bird did not violate the licensing statute and was not subject to discipline.

Experience Generates Results

Kansas Professional licensing Attorney Danielle Sanger, with offices in Missouri and Kansas, understands the stress of facing a complaint levied by a licensing board. Attorney Sanger is a seasoned professional licensing attorney who will fight to protect your professional license that is the essence of your livelihood. Call Attorney Danielle Sanger today at 785-979-4353 to learn the difference experience will make for you.

Duty To Warn: Disclosure Versus Privacy In Missouri

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Medical professionals must learn very private details of their patients’ lives to properly treat them. Likewise, patients must trust their physicians with intimate and private information so they get the care they deserve. Both patient and care giver understand and rely upon the confidentiality which is essential to proper medical care. In the ordinary case, medical professionals will jealously guard their duty. The duty of maintaining confidentiality or privilege, depending upon the nature of the care provided, on its face, appears to be a bright-line rule. Can the circle of trust be broken without committing an ethical violation in Missouri? The answer depends upon the facts of the individual case.  Therefore, if you find yourself in that position, it is crucial that you contact Missouri professional licensing attorney Danielle Sanger for a thorough analysis of the situation.

In Missouri, a “mental health coordinator” has a duty imposed by statute to take action if they receive information that a person is about to commit a “serious harm.” The threat must arise from a “mental disorder.” In that instance, the statute requires the mental health coordinator to conduct an investigation, analyze the data acquired during the investigation, then evaluate the credibility of the sources of the information. At that point, the coordinator must determine whether a threat to do serious bodily harm exists. If there is reasonable cause to believe the patient will hurt himself or someone else, then the mental health professional must contact the local probate court for an order to apprehend the individual. If the professional believes that the threat is imminent, the coordinator may seek police assistance in apprehending the person and commit them involuntarily. Lastly, the statute imposes a duty upon the coordinator to notify the patient’s family and friends about available services if an involuntary commitment is not indicated.

The above procedure, if followed, can thwart a threat to a specific person or group of people. The statute is silent as to whether the target of the threat must be notified. Notwithstanding, Missouri may impose a “common law” duty to warn the potential target of the threat. Failure to discharge that duty may have adverse professional consequences. The existence of a duty to warn rests on several factors. Those factors include the public policy of Missouri in preventing the harm alleged, the foreseeability of the potential harm and the ability to protect against it, the moral blame associated with the harm, and the societal costs to the “actor and the community.” The right to sue for failure to warn extends only to identifiable potential victims and not the community at large. The cost to the provider is minimal. Discharging the duty to warn may be as simple as a telephone call to the police or other appropriate authority, and the object of the threat.

The duty to warn may attach to more than mental health professionals. Generally speaking, Missouri does not impose a duty to warn upon the average person to prevent a third party from becoming a victim of a crime. In that instance, liability does not attach to the person who could have prevented the harm. Notwithstanding, the nature of the relationship between care giver and patient can impose the duty to warn a third party about impending harm. The harm, however, must not be remote. It must be foreseeable. Foreseeable means whether the reasonable person knew or should have known about the potential danger and taken some measure to stop it.

Seek Immediate Legal Assistance If You Find Yourself In This Situation

No medical professional wants to find themselves in this situation. Missouri Professional Licensing Attorney Danielle Sanger recommends that you follow the appropriate steps to discharge your duty and document as much information as you can. Attorney Sanger will rely on that information to vigorously defend you if adverse legal action is taken against you because of your decision. Call Missouri professional licensing attorney Danielle Sanger today for a free, no-obligation consultation at 785-979-4353.

Kansas Professional Licensing Attorney Explains Administrative Appeals

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Adverse action against a professional license can be appealed to a higher court for review. In Kansas, an administrative law judge makes findings and rulings at a hearing. The administrative law judge’s findings of fact and rulings of law must be based upon the evidence produced by the licensing authority at a hearing.  The licensee may accept the findings of the administrative law judge or appeal. The case is not heard all over again. Rather, the reviewing judge, usually a district court judge, will review the record generated by the investigation and hearing before the administrative law judge to ensure that the administrative law judge’s decision complied with Kansas law.  Kansas professional licensing attorney Danielle Sanger has vast experience in representing professional licensees in adversarial actions at the administrative level and on appeal.

In Kansas, the licensing authority has the burden of proving the allegations against the licensee. The administrative law judge must find the licensing authority has proved its case with substantial competent evidence to take adverse action against the licensee.  On appeal, the party with the burden of proof changes. The party asserting the error must prove that the ruling was wrong and its decision was “arbitrary and capricious.” The reviewing court will not hear new evidence. The reviewing court must accept the findings of fact found by the administrative law judge if the facts are “supported by substantial competent evidence.” “Substantial competent evidence” has been defined by Kansas courts as evidence that is relevant and provides a “substantial basis” to resolve the contested issues. The prevailing party is entitled to deference on the facts if the facts of the case are disputed on appeal to determine if the facts are supported by substantial competent evidence.” The court does not re-evaluate the evidence. However, the issues of law as decided by the administrative law judge are reviewed de novo by the appellate judge.

With those guidelines the reviewing court will only reverse the administrative law judge’s decision in very limited circumstances. One such circumstance is that the underlying statute, regulation, or by-law which formed the basis for punishment is unconstitutional and invalid, either “on its face” or “as applied.”  A reviewing court may overrule the findings if the agency investigating the allegations of wrongdoing had no jurisdiction to do so. The court may also overturn the decision if the administrative law judge failed to decide every issue required for resolution of the entire matter. If the investigating agency follows an illegal investigatory procedure or fails to follow proper procedure, then the decision may be overturned. Likewise, if the persons investigating the wrongdoing were not properly authorized to do so then the decision may be overturned. Furthermore, if the agency action is based upon a “determination of fact” of which there is no evidence and the fact is “substantial” to the determination of the issue. Lastly, the reviewing court may overturn the administrative law judge’s decision if the decision is arbitrary or capricious.

The district court’s decision may also be appealed. An appellate court will review a lower court’s decision to ensure that the district court limited its review strictly to the issues permitted. In that sense, an appellate court will undertake a similar review of the record as the district court. The appellate court is limited to the same areas of inquiry as the district court.

Do Not Try To Navigate These Choppy Waters Alone

Kansas Professional Licensing Attorney Danielle Sanger has vast experience in representing numerous professional licensees who face disciplinary action. Attorney Sanger is keenly aware of the sacrifice and determination required in obtaining a professional license. Adversary proceedings against a professional license are complicated and confusing. Contact Kansas professional licensing attorney Danielle Sanger today at 785-979-4353 to schedule your free consultation.

Missouri Licensing Board Endeavors To Make Our Buildings Safe

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The Missouri Board of Architecture, Engineers, Land Surveyors, and Landscape Architects (“the Board”) provides an invaluable service to the public. The Board ensures that the professionals who plan and construct the buildings in which we live, work, and play are competent and properly licensed. The Board establishes the ethical duties of its member licensees as well as the code of conduct for its members. Missouri professional licensing attorney Danielle Sanger represents licensees who are being investigated by the Board for conduct they claim falls below their standards.

The Board was created by the Missouri legislature with the mandate of ensuring the structural integrity of Missouri’s buildings. The statute confers the power to the Board to issue licenses to practice as an architect, engineer, land surveyor, or landscape architect. The statute also bestows the authority upon the Board to discipline those licensees. After investigation into allegations of wrongdoing, the Board may file a complaint with Missouri’s administration hearings commission to seek adjudication of the allegations. There are numerous reasons for which a complaint may be filed. These reasons are not arbitrary but rather bare directly upon whether the licensee is competent to perform in his or her profession. Alcohol and/or drug use that impairs the ability of the licensee to competently perform may be disciplined. A conviction in state or federal court, or a plea of nolo contendre, that relates to the ability to function in the profession or an adjudication of a crime involving fraud or deceit, or an act of violence may be disciplined, even if a sentence is not imposed. Engaging in any fraud, deceit, bribery, or misrepresentation may also be disciplined.  Similarly, incompetence, gross negligence or misconduct while performing the duties of a licensee may be punished. Adverse license action may also be taken for holding oneself out as a licensee without holding a valid license or assisting a person in that capacity. Further still, violations of the public trust, false or misleading advertising, failing to properly display a license, or being disciplined by another licensing authority will subject the licensee to a facing a disciplinary complaint. Lastly, being adjudicated incompetent or disabled by a court will cause the licensee to face adverse action.

The Board has the discretion to mete out punishment as prescribed by law. The statute provides for various forms of punishment, including censure or probation. The probationary term may not exceed 5 years and may include terms designed to prevent further ethical violations. The Board may also take more serious action. The Board can levy a fine or suspend practice for up to 3 years. Most significantly, the Board may revoke a license to practice in one of the named professions. In fact, the Board has revoked approximately 47 licenses as of November 20, 2015. Furthermore, there are currently eight licensees on probation and none on suspension. However, 10 licensees are listed as suspended for failure to pay taxes. That status is known as a “House Bill 600” suspension.

Licensees must comply with the statutory grounds to remain in good standing with the Board, and they also must follow the Code of Professional Conduct.  The Board has the authority to make regulations, such as the Code of Professional Conduct, to maintain public trust in the profession. Any violation of the Code of Professional Conduct may result in the Board filing a complaint for discipline. The Code of Professional Conduct requires licensees to act with “reasonable care and competence” and to “apply technical skill” required of architects, engineers, land surveyors, and landscape architects.  Additionally, these professionals are to avoid self-dealing and represent themselves to the degree they are trained and educated.

Call For More Information

If you are an architect, engineer, land surveyor, or landscape architect and you are facing discipline, call Missouri Professional Licensing Attorney Danielle Sanger. Attorney Sanger has the experience to vigorously represent you based upon successfully representing professional licensees as well as her experience as an assistant attorney general. Call Missouri professional licensing attorney Danielle Sanger today at 785-979-4353 to schedule your free, no-obligation consultation. Learn the difference experience and determination will make for you.