BRIEF COMMUNICATIONS Computer database searching and professional malpractice: who cares?* By Nicholas G. Tomaiuolo, M.L.S. Information Services Librarian Barbara J. Frey, M.A. Head, Information Services Department Lyman Maynard Stowe Library University of Connecticut Health Center P.O. Box 4003 Farmington, Connecticut 06034-4003 INTRODUCTION

Although many professional publications have considered malpractice in librarianship, including the issue of librarians and information retrieved from computer databases, these articles invariably take a theoretical or hypothetical perspective [1-3]. The articles are based on the premise that, because health sciences librarians conduct searches that ultimately may affect human health, they may be vulnerable to malpractice claims; law librarians may be in a similar position. Various papers have suggested guidelines intended to assist information specialists in deferring or averting such charges. As these publications are based on supposition, a number of questions logically arise. To what extent are librarians concerned about malpractice? Are librarians taking steps to avoid malpractice? What factors may influence their attitudes toward the possibility of litigation? This paper attempts to discern whether health sciences librarians and law librarians are concerned about the possible legal consequences of the computer searches they perform. The intent is to generate hypotheses, not to test them. Generally, discussions about malpractice and librarianship have revolved around the relationship between librarian and patron. According to Gray, an attorney, The relationship between the reference librarian and the patron is not a contractual one and so the librarian (and the library/employer) has no contract liability for any failure to perform satisfactorily [4].

However, common law provides for recovery of damages in cases where negligence is related to bodily injury [5], and more recent literature suggests that economic loss related to unintentional negligence also * Presented June 3, 1991, at the Ninety-first Annual Meeting of the Medical Library Association, San Francisco, California.

Bull Med Libr Assoc 80(4) October 1992

should be recoverable under tort law [6]. Gray defined the concept of "standard of the reasonable person" or "standard of care" as it applies to information specialists [7]. Denis and Poullet, who clarified the distinction between tort law and contract law as it applies to malpractice, suggest that a "broker or intermediary may also be liable if, due to an inadequate search, his client suffers losses" [8]. But Leone has observed, "It is difficult to visualize any situation where a librarian's failure in assisting a patron could result in consequences warranting litigation" [9]. There are exceptions, however; in particular, payment for services seems to alter the nature of the librarian-client relationship. "It is the fact that we are holding ourselves out as experts and being paid for specific expertise which creates potential liability," writes Pritchard. "The closer the information specialist is to the direct receipt of compensation for his or her services, the greater the exposure to malpractice liability" [10]. Gray agreed that charging a fee is critical in the creation of liability exposure [11]. Because many librarians charge clients to recover costs for equipment, database access, and training, they fall into this category of experts receiving payment. Besides the issue of payment, another factor increasing exposure to malpractice may be creation of false expectations regarding expertise and information retrieval. Several authors agree with Pritchard and Quigley, who wrote, "Any statement which could raise expectations about your ability could also raise potential liability" [12]. Nasri commented that giving "an impression of a definite, comprehensive answer may build up false expectations that may lead to a malpractice suit" [13]. Everett advised information specialists to make clients aware of the vagaries of databases and to avoid making unsubstantiated claims about possible search results [14]. Everett, who discussed assessment of blame for faulty online information, quoted two commercial information specialists who describe an extensive "front-end" reference interview strategy [15]. This type of interview involves informing clients of database limitations. Everett, among others, has recommended disclaimers [16]. Pritchard and Quigley, who cautioned that no clause could protect the grossly negligent searcher, suggested that "more subtle provision could provide that the recipient would be solely responsible for determining the adequacy of the research for any and all uses" [17]. Gray offered a slight variation, a statement disclaiming any assurance as to the accuracy of the information as originally published. If the original data were erroneous, but they were reported accurately to the requester, then the complaint would be with the original source, not with the librarian [18]. 367

Brief communications Figure 1 "Malpractice liability of librarians is eminently possible"

Figure 2 Degree of concern about malpractice by quartile rank for search volume

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Gray noted that courts concentrate on the terms of the agreement and reasonable expectations of the parties. Therefore, by determining the requirements of the request accurately and by disclaiming any responsibility for the accuracy of the information as provided in the searched sources, the information specialist minimizes possible culpability [19].

METHODS For the present analysis, a brief questionnaire was devised. The purpose was fourfold: to obtain information on the extensiveness of presearch interviews, to determine whether libraries charged a fee for staffmediated searches, to gauge the use of disclaimers on search-related forms, and to measure the subjective perception of the possibility of malpractice in librarianship. A list of academic medical libraries was obtained from the Annual Statistics of Medical School Libraries [20] and a list of law school libraries from the Directory of Law Libraries [21]. Of 121 academic medical libraries contacted, 83 usable responses were received for a response rate of 69%. Of 172 law libraries, 106 responded, for a response rate of 62%. A seven-point Likert scale was used for responses to most questions. Yes/no questions also were asked, as were several multiple-choice questions. Samples of search disclaimers were requested. Responses were coded, entered, analyzed, and cross-tabulated using SPSS+ software. 368

RESULTS AND DISCUSSION Possibility of malpractice and degree of concern Respondents were asked to rate their agreement on a Likert scale (1 = total disagreement, 7 = total agreement), with this statement: "Malpractice liability of librarians is eminently possible." More law librarians (13%) than health sciences librarians (7%) agreed that information specialists soon may face litigation, but the overall result, shown by the declining slope on the law library portion of Figure 1, indicates that even law librarians do not consider malpractice a current threat. A greater percentage of law librarians (20%) totally disagreed with the statement, compared to their biomedical counterparts (12%). After analysis, the key item reflecting the concern of librarians toward malpractice was the statement "malpractice of a librarian is an eminent possibility." Respondents were asked to agree or disagree. Thirtyone percent of all respondents expressed low concern for malpractice (law, n = 38; health sciences, n = 21). Seventeen percent of all respondents expressed high concern (law, n = 22; health sciences, n = 9). The remaining 52% fell into the moderate concern group (law, n = 46; health sciences, n = 53). When analyzed by library type, responses indicated that 25% of the biomedical librarians show low concern versus 36% of the law librarians; moderate concern, the figures were 64% and 43% respectively, and for high concern the figures were 11% and 21%. These three categories of concern then were measured against other questionnaire responses. Bull Med Libr Assoc 80(4) October 1992

Brief communications Figure 3 Degree of concem about malpractice by quartile rank for search volume

Figure 4 Concern about malpractice by presence of liability disclaimer %100, 0

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COMPARISON TO OTHER VARIABLES Number of searches performed The numeric range of reported computer searches was divided into quartiles containing approximately equal numbers of respondents. Figure 2 shows that the mean concern score for each quartile hovers near two (2 = moderate concern); all groups, regardless of number of searches performed, appear moderately concerned. As shown in Figure 3, however, the variation of response within the quartiles indicates that libraries in the top quartile (those performing 1,600 or more searches per year) had the fewest respondents in the high concern category-only two, accounting for less than 10% of those with high concern. Libraries in the bottom quartile (performing 100 or fewer searches per year) accounted for 40% of the group with high concern. A possible explanation for this result is that librarians who do not perform many searches may limit them because of their liability concern. Alternatively, librarians performing numerous searches may have increased confidence and, therefore, less concern.

that they used disclaimers on their search-related forms (e.g., receipts, invoices), or 7% of the librarians in the high-concern group (10% of the health sciences librarians, 3% of the law librarians). The remaining 93% of the highly concerned respondents did not use disclaimers. Clearly, such statements are not popular with searchers, although several authors, including attorneys, have recommended using a disclaimer of liability. Even in the group that demonstrated the most concern, twenty-seven of twenty-nine respondents answered no to this question. Six of the eight health sciences librarians responding affirmatively chose to share them; for example, While every effort will be made to produce the best possible search, no search is guaranteed to retrieve every article on the topic. Your input and subject expertise are invaluable in devising the strategy and selecting appropriate databases to best meet your requirements.

Another example: [The library] makes every effort to provide accurate and complete database search results; however, it assumes no liability for the information retrieved, its interpretation or applications, or for omissions.

DISCLAIMERS

Other libraries required the client's signature. The most comprehensive and emphatic disclaimer declared:

Figure 4 illustrates the use of disclaimers compared to the concern variable. Eleven respondents noted

[library or search service] disclaims any warrantee, whether expressed or implied, with respect to the information pro-

Bull Med Libr Assoc 80(4) October 1992

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Brief communications

vided. It is not responsible for damages, whether consequential or incidental, that result from the reliance on the information it provides. Liability is limited to the cost of services performed.

Information specialists offering online services may want to consider using similar disclaimers. In addition to offering liability protection, disclaimers provide important information to the requester. Whether implicitly or explicitly, some of these examples refer to the potential incompleteness or unintentional errors that may be present in the databases. Others consider the relationship between what the requester offers as input and what the search ultimately yields. Another states that the search results should be used only as a guide, that is, as assistance in scanning the literature. The last suggestion seems apt, especially in light of recent research that indicates that a majority of physicians and clinical trainees based clinical decisions on citations, abstracts, or Medical Subject Headings (MeSH) terms without ever consulting the full text of retrieved articles [22]. Even in the legal field, it is apparent that librarians are not concerned excessively by the potential for malpractice. Of the nineteen law libraries with vendor contracts allowing them to perform fee-based searches for outside clients, only three used disclaimer statements, e.g., The library does not accept responsibility for failing to find any particular case or failing to find anything relevant. The library is also not responsible for misunderstanding a question when the request is phoned in or where a written request does not contain all the relevant facts or does not express the issue to be researched precisely.

CONCLUSION Although the literature has addressed the possibility of liability and malpractice suits against librarians, and although a majority of respondents to this survey indicate moderate concern, no actual case reports have been identified. Disclaimers are used infrequently, although interviews with search clients tend to be comprehensive. Thus, librarians seem to operate on the basis of requesters' need to know rather than from a protective posture. The number of librarians expressing moderate concern is significant, however, and this may be a signal to professional and advocacy groups to consider developing standards to assist librarians in averting the possibility of malpractice. Future research on this topic should address the realities of liability and not merely speculate on the possibilities.

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To obtain a copy of the questionnaire discussed in this paper, direct requests to Nicholas Tomaiuolo, at the Lyman Maynard Stowe Library, University of Connecticut Health Center, Farmington, Connecticut.

ACKNOWLEDGMENT We gratefully acknowledge Ralph V. Katz, D.M.D., Ph.D., for statistical analysis.

REFERENCES 1. DENiS S, POULLET Y. Questions of liability in the provision of information services. Online Rev 1990 Feb;14(1):21. 2. MiNTz AP. Information practice and malpractice. Libr J 1985 Sep;110(15):38. 3. DRAGICH MJ. Information malpractice: some thoughts on the potential liability of information professionals. Inf Technol Libr 1989 Sep;8(3):265. 4. GRAY JA. Personal malpractice liability of reference librarians and information brokers. J Libr Adm 1988;9(2):74. 5. Restatement (second) of torts. Section 311 (1965), Negligent misrepresentation involving risk of physical harm. 6. RABIN RL. Tort recovery for negligently inflicted economic loss. A reassessment. Stanford Law Rev 1985;37:1513. 7. GRAY JA. The health sciences librarian's exposure to malpractice liability because of negligent provision of information. Bull Med Libr Assoc 1989 Jan;77(1):34. 8. DENIS, op. cit., 23. 9. LEONE G. Malpractice of a law librarian? Law Libr J 1980 Win;3(1):65. 10. PRrrCHARD T, QUIQLEY M. The information specialist: a malpractice risk analysis. Online 1989 May;13(3):57. 11. GRAY, Personal malpractice liability, op. cit., 80. 12. PRITCHARD, Op. cit., 60. 13. NAsRI WZ. Malpractice liability: myth or reality? J Libr Adm 1980 Win;1(4):5. 14. EvERETT JH. Independent information professionals and the question of malpractice liability. Online 1989 May;13(3): 70. 15. IBID., 67. 16. IBID., 68. 17. PRITCHARD, Op. cit., 61. 18. GRAY, Personal malpractice liability, op. cit., 76. 19. IBID., 75. 20. ASSOCLAI1oN OF ACADEMIc HEALTH ScIENcEs LIBRARY DiREcToRs. Annual statistics of medical school libraries in the United States and Canada. 12th ed. Houston: The Association, 1990:183-93. 21. SWORSKY M, ED. Directory of law libraries. 30th ed. New York: Commerce Clearing House, 1990-91. 22. HAYNES RB, McKIBBON KA, WALKER CJ, RYAN N ET AL. Online access to MEDLINE in clinical settings. A study of use and usefulness. Ann Intern Med 1990 Jan; 12(1):81.

Received October 1991; accepted March 1992

Bull Med Libr Assoc 80(4) October 1992

Computer database searching and professional malpractice: who cares?

BRIEF COMMUNICATIONS Computer database searching and professional malpractice: who cares?* By Nicholas G. Tomaiuolo, M.L.S. Information Services Libra...
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