Oddly, not all design errors amount to malpractice. By definition, design malpractice is the failure to conform to the applicable standard of care, meaning what similarly situated professionals would do in the given situation. However, there are notable instances where standard practices proved to be wrong, such as with the 1994 Northridge earthquake in California, where it was discovered that commonly specified structural steel welds had unexpectedly failed. Even though the weld specification proved to be wrong, specifying it before the earthquake was in conformance with the applicable standard of care and, thus, arguably not malpractice. The standard of care also contemplates that there will be design errors on every project; the more complex, the more errors. A common defense in design malpractice cases is to argue that as long as the cumulative cost of the design errors does not exceed 3% of the total project cost, the standard of care is met. This defense does not always work. Design errors are also judged geographically, and the applicable standard of care is expressed as what design professionals in the local area of the project would do in similar circumstances. Practices differ between regions of the country, for instance, in how HVAC ductwork is sealed in southern versus northern states. In some instances, one can argue that a national standard of care applies, particularly where the scope of services deals with uniform federal regulatory issues such as the Clean Water Act. 

In most states, including Michigan, the party claiming malpractice on the part of a design professional must present expert testimony as to the applicable standard of care and the breach of that standard by the designer. But first, it must be determined by the court to whom the designer owed a duty of care and the extent of damages which may be recovered. In many states, for instance, a contractor cannot pursue a design malpractice claim for monetary damages against the architect or engineer for the project because there is no contract between the designer and contractor—known as the economic loss rule. While the designer’s liability for economic losses may be limited, their liability for personal injury or property damage is much broader. For instance, a passerby struck by a falling exterior panel that was not correctly attached to the structure will likely have a claim against the designer of the attachment. 

While straightforward in most cases, determining whether malpractice has occurred and the extent of the design professional’s liability can be a complicated analysis that confounds even the most experienced arbitrators and is often a complete mystery to many juries. It takes experience, understanding, and patience to effectively present either side of a malpractice case in court or arbitration.