DISCUSIÓN SOBRE EL MODELO DE CALIDAD DEL SERVICIO

times it is necessary, and at times it works. If the lay public is ever to come to the jury box generally mindful that cavalier expansion of professional liability is to be avoided and that the public's interest is not served by standards which sweep so broadly as to engulf even the genuinely competent and conscientious professionals, the professions involved have to get the message out.

A certificate of merit is required in California prior to filing a lawsuit against a design professional.

This statute (Code of Civil Procedure 411.35) primarily provides protection to civil engineers by requiring that an anonymous civil engineer review the facts and conclude that "there is reasonable and meritorious cause for the filing of the action" (Day, 1993). This type of legislative protection from frivolous lawsuits is an area where engineering geologists can cooperate with civil engineers to develop new laws which will help to protect both professions.

Loss Prevention

Every practicing engineering geologist is exposed to some degree of professional liability. To defend against this type of risk, there are three basic alternatives: 1) insurance, 2) not entering into private practice, and 3) loss prevention. Professional liability insurance, or errors and omissions coverage, is generally not available to the engineering geologist in private practice. Only the engineering geologist who is employed by the larger geotechnical firms is covered under the umbrella of the soils and foundations engineers coverage. It is difficult to find an insurance company offering professional liability insurance for the small engineering geology firm. It is therefore an absolute necessity to enter upon a program that will lessen the risk of professional liability claims. Such a program is called

"Limitation of Liability" (see ASFE 1992).

The main problems arise from negligence and the implications of strict liability. Negligence may be committed by not utilizing state-of-the-art information or techniques or practicing without utilizing the standards of care of the time. The doctrine of implied warranty is generally applied to manufactured products such as toasters and automobiles; however, it has been attached to other mass produced items such as lots and streets in hillside grading projects.

It is important for the engineering geologist to keep abreast of technical developments within his or her field of expertise. It is equally important to be aware of what other engineering geologists are doing within the field of engineering geology. With the above considerations, every report issued should contain a statement similar to the following:

The opinions presented herein have been developed using that degree of care and skill ordinarily exercised, under similar circumstances, by reputable engineering geologists practicing in this or similar localities. No other warranty, expressed or implied, is made as to the professional advice included in this report.

After a report is completed and submitted, it is essential that you enhance your rapport with the client by making a follow-up call to determine if he was satisfied, and if there were any problems noted with your work product. This minor courtesy can reduce misunderstandings and possible claims.

For a more complete discussion on the limitation of professional liability, please refer to the 1992 ASFE publication on the Limitation of Liability.

Environmental Work Certification

The U.S. Environmental Protection Agency (U.S. EPA) and many state and local agencies require a perjury statement to accompany contaminant investigation and remediation reports. This perjury statement must be signed by the land owner or responsible parties. The typical U.S. EPA wording for the perjury statement is:

I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information including the possibility of fine and imprisonment for knowing violations.

The perjury statement is intended to verify that the client discussed with the consultant (qualified personnel) how the work was performed and that the client accepts legal responsibility for the results

responsibility which is greater than the law requires.

If the consultant is going to submit the copies of the report to the agencies for the client, the consultant should draft a letter containing the perjury statement, as a transmittal letter to the agencies involved, and have the client sign that letter. It has happened that a client hired a consultant to investigate their underground tanks. The investigation was performed by the consultant based on information from the client about the location of the tanks. The consultant found no contamination and reported those findings under penalty of perjury. Later the consultant learned that tanks which had leaked were located elsewhere on the property. At that point the consultant could be held liable for the contamination from those tanks because of having signed the perjury statement that the site was clean.

What then is the consultant really responsible for and how should it be stated? The consultant is usually required to sign a professional certification. The professional certification should be bound into the report, either at the front or the end. Critical information to be certified is that: 1) the work was actually performed in the manner described in the report, 2) the report contains all data collected and is complete, 3) the person signing the certification was in responsible charge of the work, and 4) that they are a qualified person under the legal definition in that state. In many states a licensed (registered or certified) geologist or a licensed civil engineer must be the person who signs the professional certification, and that individual should be the direct supervisor of the people doing the field work. In some situations it is necessary for the registered geologist to sign and stamp the drilling logs to indicate the accuracy of this critical data. Never sign drilling logs produced by another firm at an earlier stage of work, or drilling logs where the logging was not under your direct supervision, or where you did not have access to the samples to verify that the logging is accurate. This also applies to maps and cross sections.

Professional certification of environmental reports is discussed further in Hoose (1992). A wide variation in wording for a professional certification statement is generally acceptable and the loss prevention statement above, or something similar to it, can be included in the certification. It is wise to discuss the form of the certification statement your firm will use with an attorney who specializes in environmental law. You should also determine any specific state or local requirements for the professional certification, including the definition of a "qualified person" for the particular law or laws the investigation is intended to satisfy.

SELECTED REFERENCES

Association of Engineering Firms Practicing in the Geosciences, 1992, A guide to limitation of liability and risk allocation; a handbook for consulting engineers, environmental consultants,

Association of Engineering Firms Practicing in the Geosciences, 1992?, Loss abatement through project management: Silver Spring, Md. 20 p. ($19.50, see Chapter 1, Resource List 3, for ASFE address.)

Association of Engineering Firms Practicing in the Geosciences, 1989, Risk allocation and risk management; a message to owners: Silver Spring, Md. (One copy available to non-members, see Chapter 1, Resource List 3, for ASFE address.) Flyer describing risk allocation and limitation of liability intended to be given to clients.

Association of Engineering Firms Practicing in the Geosciences, 1992?, ADR: alternative disupte resolution for the construction industry: Silver Spring, Md., 134 p. ($65.00, see Chapter 1, Resource List 3, for ASFE address.)

Association of Engineering Firms Practicing in the Geosciences, 1989, ASFE 1989 Professional liability insurance survey report: Silver Spring, Md. ($5.00, see Chapter 1, Resource List 3, for ASFE address.)

Association of Engineering Firms Practicing in the Geosciences, 19??, ASFE Professional liability loss prevention education program: Silver Spring, Md. ($400.00, see Chapter 1, Resource List 3, for ASFE address.) Program is based on audio cassette tapes, quizzes and exercises.

California Citizens' Commission on Tort Reform, 1977, Righting the Liability Balance. (Historical background, workers' compensation, auto-related injuries, liability, increasing costs, 1977 trends, recommendations for reform, 1977 unresolved and exogenous issues.)

Day, Robert W., 1993, Certificate of merit in civil litigation: Americal Society of Civil Engineers Journal of Professional Issues in Engineering Education and Practice, v. 119, no. 3, pp. 279-283.

Frankena, William K., 1973, Ethics, (2d ed.): Prentice Hall, Inglewood Cliffs, N.J.

Hoose, S.N., 1992, One Regulator's Perspective on the Standard of Care Needed for Investigations of Groundwater Contamination, in Slosson, J.A., ed. Standard of Care and the Law, Short Course, Association of Engineering Geologists, 35th Annual Meeting, Long Beach, Calif.

Howell, E.B., and Howell, R.P., 1976, Untangling the web of professional liability: Design Professional Insurance Co., San Francisco. (Discussion of topics related to the reduction of professional liability exposure, professionalism, interpersonal relationships, business procedures, troublesome technical aspects of professional practice, and professional liability insurance.)

Kiersch, G.A., and Cleaves, A.B. (eds.), 1969, Legal aspects of geology in engineering practice:

Geological Society of America Engineering Geology Case Histories No. 7, 112 p. (Ten articles including subjects of expert witness, changed conditions, construction claims, landslide insurance, and more.)

McGuinness, C.L., 1951, Water law with special reference to groundwater: U.S. Geological Survey Circular 117, 30 p.

National Society of Professional Engineers, 1965, Opinions of the board of ethical review: Address:

2029 K Street, NW, Washington, D.C., 114 p.

Patton, J.H., Jr., 1973, The engineering geologist and professional liability, p. 5-8, in Geology, Seismicity and Environmental Impact: Special Publication of the Association of Engineering Geologists, 446 p. Out of print.

Patton, J.H., 1992, The nuts and bolts of litigation, in Pipkin, B. and Proctor, R., eds., Engineering Geology Practice in Southern California: Association of Engineering Geologists Special Publication, no. 4, Star Publishing Co., Belmont, Calif., p. 339-359.

Prosser, William L., 1971, Law of Torts: West Publishing Co., St. Paul, MN.

Risk Analysis and Research Corporation, 1974, A compendium of information and techniques that will enable soil and foundation engineers to reduce their professional liability exposures: Risk Analysis and Research Corporation, San Francisco. (Suggestions for avoiding professional liability claims, mitigating the effects of claims lodged, and reducing the number and size of liability claims.)

Storch, Herbert, 1961, On the trembling balance...engineering liability: Consulting Engineer, September, p. 99-105.

Sutter, John H., and Hecht, Mervyn L., 1974, Landslide and subsidence liability: Practice Book No.

65, California Continuing Education of the Bar, 2300 Shattuck Ave., Berkeley, CA 94704, 240 p. (See Brainerd, in Chapter 9).

Tunis, Erwin L., 1961, Engineering malpractice: American Society of Mechanical Engineers Paper 61-SA-63, Engineers Joint Council, 345 E. 47th Street, New York, NY 10017, 4 p.

White, George M., 1959, Architects and engineers 3rd party negligence liability--the fall of the house