My professional insurance provider just sent out their annual list of suggested contract forms, protective verbage, and various other reminders to protect their industry and the design professionals and surveyors they insure.
The definition for standard of care seems to be recognized nationally;"the designer (read surveyor in our case) shall perform services consistent with the professional skill and care ordinarily provided by designers practicing in the same or similar locality under the same or similar circumstances."
My question relates to state appointed "experts"; outsiders with respect to geographic location, i.e., from a county other than the county in which a subject land surveyor's work is being reviewed for possible violations.
How does sending in an "expert" from another county (the majority of them are from other counties or localities, the state program does not choose an "expert" based on his/her being from a particular county) comport with the definition that requires familiarity with local standard of practice by that "expert" in order to evaluate another land surveyor's conformance with that local standard of care or practice in that county or locality ?
Would it be best to appoint a truly local surveyor who knows the local standard of practice ? But would his/her prior knowledge of that local surveyor being investigated (possibly even a competitor) unintentionally or unconsciously color their findings ? Maybe it is actually best to continue to have "outsiders" performing this function even though they may not be "local experts" as the standard definition for standard of care calls for.
State investigator program compatible with "Care" definition ?
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desert turtoise
- Posts: 128
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State investigator program compatible with "Care" definition ?
desert tortoise
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pls7809
- Posts: 1035
- Joined: Tue Apr 13, 2004 3:48 pm
- Location: Chino, CA
I think the state is investigating whether laws have been broken (PLS Act, etc) and those are in effect statewide, whether in San Ysidro or Crescent City.
I am interested the answer to this as well.
Is "standard of care" part of the investigations by the state board, and how is it defined, if it is?
I am interested the answer to this as well.
Is "standard of care" part of the investigations by the state board, and how is it defined, if it is?
Ryan Versteeg, PLS, CFedS
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JBStahl
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- Joined: Wed Jun 11, 2008 7:02 am
There is a distinct difference between "standards of practice" and "standards of care." Standards of practice need to be defined by the profession through its professional societies on a state level with input from regional and national associations to maintain cohesiveness in the standards.
Standards of practice include such topics as contracting, research, fieldwork, office work, and general product delivery. Standards of practice should not be defined as "minimums" as the work performed for each survey project is unique to the project.
Standards of care define the "level" of care the surveyor should perform for each practice. For example, "how much" research is necessary? How tightly should the control traverse close? Should all easements have been shown? etc.
The standard of care is universally determined by the courts by applying the "reasonable man" theory. The theory is based upon what an ordinary [surveyor] would do in a similar circumstance. As long as the surveyor performed above that level, they've met the standard of care. The Bell v. Jones case (523 A.2d 982) determined that the theory is a "national" standard as opposed to a "local" standard the same as any doctor, accountant, or architect.
What is elusive about the standard of care is that the level changes with each project and each circumstance. The needs of the client/project dictate the level of care necessary to meet the standard. (see, Bowman v Danskin, 338 N.Y.S.2d 224). A level of care which meets the standard under one circumstance may fail in another circumstance.
I'm of the opinion that matters of professional negligence should be handled in civil court, not an administrative court with a Board sitting in judgment. The Board should handle licensing issues, not sit in judgment of the profession. The authority to sit in judgment varies from state to state under their statutory enabling act. I don't agree that a Bord, comprised primarily of engineers, should sit in judgment of its "subjects." Administrative hearings are not conducive to findings of "guilt" or "innocence." They seem more like witch hunts.
If a professional provides a service which harms a member of the public, the proper recourse is through mediation, arbitration, or litigation in a civil court. I would be in favor of a Board rule that establishes three findings of negligence by a civil court as grounds for Board sanctions (three strikes policy?). But the Board shouldn't be pitching the ball, swinging the bat and declaring "you're out!"
JBS
Standards of practice include such topics as contracting, research, fieldwork, office work, and general product delivery. Standards of practice should not be defined as "minimums" as the work performed for each survey project is unique to the project.
Standards of care define the "level" of care the surveyor should perform for each practice. For example, "how much" research is necessary? How tightly should the control traverse close? Should all easements have been shown? etc.
The standard of care is universally determined by the courts by applying the "reasonable man" theory. The theory is based upon what an ordinary [surveyor] would do in a similar circumstance. As long as the surveyor performed above that level, they've met the standard of care. The Bell v. Jones case (523 A.2d 982) determined that the theory is a "national" standard as opposed to a "local" standard the same as any doctor, accountant, or architect.
What is elusive about the standard of care is that the level changes with each project and each circumstance. The needs of the client/project dictate the level of care necessary to meet the standard. (see, Bowman v Danskin, 338 N.Y.S.2d 224). A level of care which meets the standard under one circumstance may fail in another circumstance.
I'm of the opinion that matters of professional negligence should be handled in civil court, not an administrative court with a Board sitting in judgment. The Board should handle licensing issues, not sit in judgment of the profession. The authority to sit in judgment varies from state to state under their statutory enabling act. I don't agree that a Bord, comprised primarily of engineers, should sit in judgment of its "subjects." Administrative hearings are not conducive to findings of "guilt" or "innocence." They seem more like witch hunts.
If a professional provides a service which harms a member of the public, the proper recourse is through mediation, arbitration, or litigation in a civil court. I would be in favor of a Board rule that establishes three findings of negligence by a civil court as grounds for Board sanctions (three strikes policy?). But the Board shouldn't be pitching the ball, swinging the bat and declaring "you're out!"
JBS
John B. Stahl, PLS
Cornerstone Professional Land Surveys, Inc.
Salt Lake City, Utah
www.cplsinc.com
***May your boundaries fall in pleasant places (Ps 16:6)***
Cornerstone Professional Land Surveys, Inc.
Salt Lake City, Utah
www.cplsinc.com
***May your boundaries fall in pleasant places (Ps 16:6)***
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desert turtoise
- Posts: 128
- Joined: Mon Jun 30, 2008 2:53 pm
- Location: western us of a
practice v. care ?
JB, thank you for your valuable input. I do not see as much clear daylight as you do between practice and care. I think they are somewhat melded together.
I agree the court system should decide competence and negligence, not a state agency. Two people using an "experts" opinion from another locality has resulted in mistakes, regardless of their entirely good intentions. Nobody is capable of stepping up to the plate and batting 1000 in this life.
I know of one PLS whose citation was dropped on appeal. He/she remains permanently damaged by the state's investigative program; whenever that surveyor goes into a deposition as an expert, the opposing lawyer asks one of their standard questions; "have you ever received a citation from the state?" The opposing lawyer does not care nor want to hear that it was over-turned, groundless or a mistake of the bureacratic process.
Good intentions ? Yes, they have nothing but good intentions. But what they do in Sacremento can have a permanent effect on how someone earns their living.
I agree the court system should decide competence and negligence, not a state agency. Two people using an "experts" opinion from another locality has resulted in mistakes, regardless of their entirely good intentions. Nobody is capable of stepping up to the plate and batting 1000 in this life.
I know of one PLS whose citation was dropped on appeal. He/she remains permanently damaged by the state's investigative program; whenever that surveyor goes into a deposition as an expert, the opposing lawyer asks one of their standard questions; "have you ever received a citation from the state?" The opposing lawyer does not care nor want to hear that it was over-turned, groundless or a mistake of the bureacratic process.
Good intentions ? Yes, they have nothing but good intentions. But what they do in Sacremento can have a permanent effect on how someone earns their living.
desert tortoise
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E_Page
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- Joined: Thu Jun 23, 2005 6:49 am
- Location: El Dorado County
John,
I have to disagree with you, to a point, on the matters over which a licensing Board should have authority. While I agree that having them preside over disciplinary hearings is not a good model, I do believe that they should have final authority over disciplinary matters (with leave for the respondent to appeal the decision to civil court) as they are licensing matters.
The Board issues licenses to those who have demonstrated minimal competence to practice as a land surveyor. The Board establishes rules and codes of conduct by legislative authority. If a licensee demonstrates that his or her practice falls below that expected of a minimally competent licensee, either through negligence or incompetence, or if the licensee violates the rules of practice or code of conduct as properly established by the Board or the legislature, then the Board should have the authority to reprove, restrict, suspend, or revoke the license granted.
However, your point about them sitting in judgment is well taken. Engineers, Surveyors, and other licensing Board members are not (typically) trained judges and bring their own biases of proper practice developed through their own technical background to the case, and so should not preside over hearings conducted to decide the fate of others' licenses.
California recognizes these facts and so has a court system for administrative hearings which is in some ways parallel to, but still subject to the main court system.
In CA, while the Board has final authority to accept, reject, or modify a decision after an administrative hearing, the Board does not officiate at the hearing or draft the decision, nor are any Board Members typically ever present at an Administrative Hearing.
In most cases, the Board reviews the decision for any glaring inconsistencies and that the items in the Order of the proposed decision seem appropriate and reasonable to the infraction. Otherwise they typically rubberstamp the decision. Any amendments are sent back to the AJ to be included in the Final Decision. This provides a check on the Board that they are not directing an amendment that is in violation of law.
The hearing is presided over by an Administrative Judge from the Office of Administrative Hearings. These are typically retired Superior Court Judges with many years of experience presiding over civil and criminal cases. The judges may or may not know the first thing about surveying or boundaries, so as in civil court, the parties must make their cases understandable to a judge with a non-technical background, and therefore no pre-concieved notions about how the work should have been performed.
In a case I was involved in that was recently posted on the BPELSG website, the Board accepted the decision with only one amendment to the Order. The judge had ordered that the subject licensee complete a course in surveying within 30 days of the decision being finalized. The Board amended that to a more reasonable 12 months.
There is a point before the matter is referred to the AG for prosecution through the OAH at which the subject licensee can request an informal hearing with the Executive Officer of the Board. I was involved with one of those some time back as well. In that case, the subject licensee is asking the EO to take a closer look at the facts with the opportunity for the subject licensee to provide a face to face explanation and to answer specific questions the EO may come up with. This is not in lieu of the Administrative Hearing, but an extra step that may be invoked to attempt to head off the need for a hearing. In the case of the subject licensee of the informal hearing I was involved in, it ended up working out well for him.
I believe that there are some significant defficiencies with the overall enforcement system here, but they have to do with the qualifications, selection, and oversight of expert consultants to the Board engaged for case technical review and not so much with the hearing process. I believe that it is a good thing that the Board, comprised of both technical and non-technical "Public" members have oversight or final acceptance authority of the decisions coming out of the OAH, for just the reason demonstrated by my earlier example.
Tortoise,
Addressing further the local vs. regional vs. national standard of care, as JB stated, with Bell v Jones, the courts moved from a local standard of care to a national one. But even with that, the courts still recognize that there are differences in state and local laws, and specific issues that may also affect the standard of care.
So although it is basically a national standard, they recognize these differences by seeking for testimony as to the standard of care within the same or similar community. That means that if the subject licensee of a complaint works in a rural desert community in San Bernardino County, testimony from an expert who practices in Imperial, Inyo, or even the high desert of Modoc County is every bit as valid as from another surveyor practicing closer to where the subject project occurred.
The court will be concerned with whether the expert works under the same laws that the practice which includes the alleged violation was performed under, and if the expert is familiar with the types of conditions which did or could have been expected to occur in performance of that practice.
The court may reject or discount the testimony from an expert whose background is quite different from the circumstances present or expected in the practice subject to the case. A surveyor who has always practiced in a highly urban environment and whose knowledge of rock mounds and wood posts doesn't go beyond what he might identify on a construction site, along a fence, or at best, from a picture and a paragraph of the BLM Manual, will not be a good expert witness in that rural desert case and may even be rejected because he is not familiar with conditions in the same or similar community as where the alleged violation occurred.
I don't have case references at my fingertips just now, but can come up with them sometime over the next few days if needed. JB, if he's still following may have more info to refine or expand upon this topic.
I have to disagree with you, to a point, on the matters over which a licensing Board should have authority. While I agree that having them preside over disciplinary hearings is not a good model, I do believe that they should have final authority over disciplinary matters (with leave for the respondent to appeal the decision to civil court) as they are licensing matters.
The Board issues licenses to those who have demonstrated minimal competence to practice as a land surveyor. The Board establishes rules and codes of conduct by legislative authority. If a licensee demonstrates that his or her practice falls below that expected of a minimally competent licensee, either through negligence or incompetence, or if the licensee violates the rules of practice or code of conduct as properly established by the Board or the legislature, then the Board should have the authority to reprove, restrict, suspend, or revoke the license granted.
However, your point about them sitting in judgment is well taken. Engineers, Surveyors, and other licensing Board members are not (typically) trained judges and bring their own biases of proper practice developed through their own technical background to the case, and so should not preside over hearings conducted to decide the fate of others' licenses.
California recognizes these facts and so has a court system for administrative hearings which is in some ways parallel to, but still subject to the main court system.
In CA, while the Board has final authority to accept, reject, or modify a decision after an administrative hearing, the Board does not officiate at the hearing or draft the decision, nor are any Board Members typically ever present at an Administrative Hearing.
In most cases, the Board reviews the decision for any glaring inconsistencies and that the items in the Order of the proposed decision seem appropriate and reasonable to the infraction. Otherwise they typically rubberstamp the decision. Any amendments are sent back to the AJ to be included in the Final Decision. This provides a check on the Board that they are not directing an amendment that is in violation of law.
The hearing is presided over by an Administrative Judge from the Office of Administrative Hearings. These are typically retired Superior Court Judges with many years of experience presiding over civil and criminal cases. The judges may or may not know the first thing about surveying or boundaries, so as in civil court, the parties must make their cases understandable to a judge with a non-technical background, and therefore no pre-concieved notions about how the work should have been performed.
In a case I was involved in that was recently posted on the BPELSG website, the Board accepted the decision with only one amendment to the Order. The judge had ordered that the subject licensee complete a course in surveying within 30 days of the decision being finalized. The Board amended that to a more reasonable 12 months.
There is a point before the matter is referred to the AG for prosecution through the OAH at which the subject licensee can request an informal hearing with the Executive Officer of the Board. I was involved with one of those some time back as well. In that case, the subject licensee is asking the EO to take a closer look at the facts with the opportunity for the subject licensee to provide a face to face explanation and to answer specific questions the EO may come up with. This is not in lieu of the Administrative Hearing, but an extra step that may be invoked to attempt to head off the need for a hearing. In the case of the subject licensee of the informal hearing I was involved in, it ended up working out well for him.
I believe that there are some significant defficiencies with the overall enforcement system here, but they have to do with the qualifications, selection, and oversight of expert consultants to the Board engaged for case technical review and not so much with the hearing process. I believe that it is a good thing that the Board, comprised of both technical and non-technical "Public" members have oversight or final acceptance authority of the decisions coming out of the OAH, for just the reason demonstrated by my earlier example.
Tortoise,
Addressing further the local vs. regional vs. national standard of care, as JB stated, with Bell v Jones, the courts moved from a local standard of care to a national one. But even with that, the courts still recognize that there are differences in state and local laws, and specific issues that may also affect the standard of care.
So although it is basically a national standard, they recognize these differences by seeking for testimony as to the standard of care within the same or similar community. That means that if the subject licensee of a complaint works in a rural desert community in San Bernardino County, testimony from an expert who practices in Imperial, Inyo, or even the high desert of Modoc County is every bit as valid as from another surveyor practicing closer to where the subject project occurred.
The court will be concerned with whether the expert works under the same laws that the practice which includes the alleged violation was performed under, and if the expert is familiar with the types of conditions which did or could have been expected to occur in performance of that practice.
The court may reject or discount the testimony from an expert whose background is quite different from the circumstances present or expected in the practice subject to the case. A surveyor who has always practiced in a highly urban environment and whose knowledge of rock mounds and wood posts doesn't go beyond what he might identify on a construction site, along a fence, or at best, from a picture and a paragraph of the BLM Manual, will not be a good expert witness in that rural desert case and may even be rejected because he is not familiar with conditions in the same or similar community as where the alleged violation occurred.
I don't have case references at my fingertips just now, but can come up with them sometime over the next few days if needed. JB, if he's still following may have more info to refine or expand upon this topic.
Evan Page, PLS
A Visiting Forum Essayist
A Visiting Forum Essayist
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land butcher
- Posts: 1615
- Joined: Fri Jul 26, 2002 7:26 pm
- Location: calif
We have allowed ourselves to become overly burdened with dotting I's and unlimited liability instead of, as in other licensed areas, loosening of the required standards thereby reducing liability.
The medical industry has a $250K cap on medical malpractice an amount so low that one large law firm states "In CA there is no such thing as medical malpractice".
The construction industry is only liable if they did not state; "I did the best job I could".
As for research, I had done a survey and a ex county survey employee contacted me as their survey abutted mine and would I do the field work. I was given that surveyors research data and included was info I didn't know existed. In reviewing it the data had no adverse effect on my survey but I asked this ex county surveyor about the data - "Since I worked there I knew where to look and it's not readily available to the general public." So if it had had a effect on my survey where would that have left me in a board review.
Research is limited to what we can readily access, but is that sufficient. Title cos have a hoard of "private" info.
The medical industry has a $250K cap on medical malpractice an amount so low that one large law firm states "In CA there is no such thing as medical malpractice".
The construction industry is only liable if they did not state; "I did the best job I could".
As for research, I had done a survey and a ex county survey employee contacted me as their survey abutted mine and would I do the field work. I was given that surveyors research data and included was info I didn't know existed. In reviewing it the data had no adverse effect on my survey but I asked this ex county surveyor about the data - "Since I worked there I knew where to look and it's not readily available to the general public." So if it had had a effect on my survey where would that have left me in a board review.
Research is limited to what we can readily access, but is that sufficient. Title cos have a hoard of "private" info.
Defund govt
To fully fund govt first the national debt would have to be paid. The US Govt is $18 TRILLION in debt, using 350 million people in the USA it would require $51,000 from every man, woman and child to pay it off. And that's just the Federal debt. Did you write your check yet?
To fully fund govt first the national debt would have to be paid. The US Govt is $18 TRILLION in debt, using 350 million people in the USA it would require $51,000 from every man, woman and child to pay it off. And that's just the Federal debt. Did you write your check yet?
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desert turtoise
- Posts: 128
- Joined: Mon Jun 30, 2008 2:53 pm
- Location: western us of a
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LS_8750
- Posts: 1166
- Joined: Tue Jul 20, 2010 5:36 pm
- Location: Sonoma
- Contact:
Mr. Wooley,
Thanks, I will be reviewing this when I get time. I've been thinking about exactly what you just stated. I don't really care about what the licensing board considers, but rather what opposing council will be jabbing me with when in the hot seat.
You know, the way the law is written damn near every boundary survey is in line with the boundary aspects of the 2011 min. ASCM/ALTA standards.
Thanks, I will be reviewing this when I get time. I've been thinking about exactly what you just stated. I don't really care about what the licensing board considers, but rather what opposing council will be jabbing me with when in the hot seat.
You know, the way the law is written damn near every boundary survey is in line with the boundary aspects of the 2011 min. ASCM/ALTA standards.
Clark E. Stoner, PE, PLS
Bear Flag Engineering, Inc.
Sonoma County
Santa Cruz County
tel. 707.996.8449 (Sonoma) or 831.477.9215 (Santa Cruz)
clark@bearflagcivil.com
Bear Flag Engineering, Inc.
Sonoma County
Santa Cruz County
tel. 707.996.8449 (Sonoma) or 831.477.9215 (Santa Cruz)
clark@bearflagcivil.com
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7702
- Posts: 392
- Joined: Mon Jan 10, 2005 6:57 pm
hot seat
I would like to think that caring about what the licensing board considers will keep me OUT of the hot seat! : )I don't really care about what the licensing board considers, but rather what opposing council will be jabbing me with when in the hot seat.
Mark Moore, LS 7702
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desert turtoise
- Posts: 128
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I agree w/ RAM, anyone reading this series of comments should receive at least one, maybe two, Professional Development Units, thanks to D.Woolley,
E.Page, JB Stahl,and other participants.
Evan Page's comments on "significant deficiencies" with experts' qualifications, and a selection process for what someone above called "self-proclaimed experts" is a reality in my opinion also.
I know of instances where county surveyor(s) was (were) absolutely satisfied with signing the corner record. Others (surveyors, owners, lawyers)
were unhappy with that and filed a complaint against the surveyor,(not the county surveyor.) The surveyor(s) who filed the Corner Record(s) was(were) cited.
One citation was reversed in an informal hearing. So much for "experts". I guess they know more than the "local" county surveyor.
E.Page, JB Stahl,and other participants.
Evan Page's comments on "significant deficiencies" with experts' qualifications, and a selection process for what someone above called "self-proclaimed experts" is a reality in my opinion also.
I know of instances where county surveyor(s) was (were) absolutely satisfied with signing the corner record. Others (surveyors, owners, lawyers)
were unhappy with that and filed a complaint against the surveyor,(not the county surveyor.) The surveyor(s) who filed the Corner Record(s) was(were) cited.
One citation was reversed in an informal hearing. So much for "experts". I guess they know more than the "local" county surveyor.
desert tortoise