"Librarians are always talking about being professionals just like doctors and lawyers ... but when they prescribe the wrong medicine, when there is as a result great injury, ... why, that's malpractice, just as certainly as it's malpractice when a doctor removes a kidney when he should have removed the gall bladder."(1)
These words are from Allan Angoff's often quoted 1976 article on "information malpractice." Angoff created a fictitious scenario where a reference librarian was sued for malpractice. The plaintiff, a patron, claimed injury due to the faulty information received from the librarian. Angoff's all too plausible scenario sparked a lengthy discussion regarding the legal liability of providing information.
Many librarians feel the threat of malpractice is real. A recent survey of law and medical librarians found that over half felt a moderate concern that they might be sued for malpractice.(2) Yet, as Wan reports, "In spite of concern about malpractice lawsuits, no librarian has actually been sued for personal malpractice."(3, 4) It has been 20 years since Angoff's article. Yet, despite the logic of his argument, no suits have appeared. Why haven't we been sued?
What is Malpractice?
Black's Law Dictionary defines malpractice as: "Professional misconduct or unreasonable lack of skill ... Failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss or damage to the recipient of those services...."(5)
Malpractice is a tort. Torts concern actions that cause harm to an individual. This differs from criminal law where the act is considered to be against society. Malpractice revolves around proving negligence. "Negligence is essentially the law of carelessness. It rests upon the assumption that each of us owes what is called a 'duty of care' to those who might be affected by careless actions on our part."(6) A duty of care is universal and must apply to all members of the community. If the courts establish a duty of care for librarians, the standard must apply to all librarians in all situations for all customers. In the law of Contracts, this duty exists only between the individuals named in the contract. The duty is unique and spelled out by the agreement.
The greatest number of malpractice claims are fried against physicians. However, in increasing numbers, other professionals, such as lawyers or architects, are finding themselves targets of litigation. Malpractice only applies to members of a recognized profession. How do the courts determine who is a professional? Generally, they consider a professional as "one having a peculiar skill."(7) They examine the necessary degree of education, establishment of peer organizations, and the creation of standards. Librarians appear to meet the criteria. We possess a unique skill that requires extensive post-graduate training. Librarians may join a wide range of long-standing, internationally recognized organizations. These groups often issue standards. For example, the Reference and Adult Services Division (RASD) of the American Library Association publishes guidelines for reference and information services.(8)
Malpractice covers a very specific range of actions. Users may bring libraries to court for a variety of reasons, including copyright infringement, negligence (i.e., slipping on the floor, tripping on an electrical cord), discrimination, defamation, etc. However, these offenses are not malpractice. Malpractice may occur when the information a librarian provides causes an individual to suffer harm. The idea that the action must cause some type of loss or injury is important in determining malpractice. "Does it make a difference whether the question I answer incorrectly is 'How high is Mount McKinley?' or 'What information can you provide me on the establishment of my own business?'"(9) In malpractice, one may only sue if they experience a tangible loss or injury. So far, dissatisfaction and inconvenience are not grounds for litigation.
Many people mistakenly believe they may only be sued if they charge for their services. Malpractice does not depend on money changing hands. In cases involving bodily injury, the economic arrangements may be irrelevant. The Official Comment to the Restatement (Second) of Torts, Section 311, Negligent Misrepresentation Involving Risk of Physical Harm, states that an obligation may apply "... even though librarians give the information gratuitously and the actor derives no benefit from giving it."(10)
The Library Environment
In determining malpractice, the relationship between the librarian and user plays an important role. Gray identified three relationships based on the librarian's work environment: reference, special, and private broker.(11) Reference librarians work in a public setting. Generally, their institutions are government supported. They allow any member of the community free access to their services. Special librarians serve an organization. They restrict their services to members of their organization. Private brokers actively solicit business and charge a fee for their services. Crossover may exist between the groups. For example, some public libraries offer fee-based online searching and hospital libraries often allow access to patients.
In addition to their relationship to the user, we must identify how librarians carry out their services. Librarians may respond to a request for information in four basic methods:
* identify sources,
* provide instruction,
* complete a search, and
* summarize results.(12, 13)
Each level of service presents a higher degree of involvement in the outcome of the exchange and heightens the librarian's potential for liability. When identifying sources, the librarian points the user toward the requested information. This is the least influential. A librarian may explain how to use a particular source. The user may claim malpractice if they feel the quality of the training resulted in their failure to find accurate information. When a librarian completes a search, they directly influence the outcome of the information exchange. The risk at this point is high. Finally, summarizing the results of a search creates the highest risk.
The Restatement (Second) of Torts, Section 311, Negligent Misrepresentation Involving Risk of Physical Harm, states that "1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information; and 2) Such negligence may consist of failure to exercise reasonable care, a) in ascertaining the accuracy of the information, or b) in the manner in which it is communicated."(14)
To prove malpractice, the plaintiff must establish four points:
1) The librarian provided false information,
2) The librarian knew the defendant's safety depended on the information,
3) It was reasonable for the plaintiff to act upon the information received from a librarian, and
4) The librarian failed to exercise reasonable care.(15)
Proving the information was false is a straightforward task. However, it leads to a deeper issue. Are librarians responsible for the content of the materials within their collection? Society expects librarians to maintain factual, up-to-date collections. However, no universal standard exists.
Librarians strive to keep their personal opinions separate from the information process. Yet they must exercise personal judgement in selecting materials. So far, librarians have been free to rely on their personal expertise to handle this duality. However, many fear that a court imposed standard would topple this balance. Consider the medical community. There is an ongoing debate about the negative impact government imposed standards have upon the quality and efficiency of care. Would the threat of litigation force us to practice "defensive librarianship"? Such fear may push librarians to water down their collections and become passive in services. This corrupts our purpose. As one librarian stated, "Pointing to sources of information or showing a person how a source is used and walking away is not reference work."(16) The loss of selection and service to the users may negate any gains made by allowing malpractice claims to stand.
On a practicable level, expecting a librarian to have intimate knowledge about the content of their materials is unreasonable. Considering the vast amount of information contained in databases, books, and journals - despite a librarian's skill and intent - there is just not enough time to keep up. It appears unreasonable for a court to expect this.
There is legal background to support this. In EWAP vs. Osmond, the plaintiff sued a video store regarding information contained in a rental tape. They claimed the tape contained libelous information and sued the store renting the tape. The court stated that, "One who merely plays a secondary role in disseminating information published by another, as in the case of libraries, news vendors, or carriers, could not be held liable for defamation unless it knew or had a reason to believe that the information was libelous."(17) Further, "When the books ... are offered for sale or free circulation, the vendor or lender is not required to examine them to determine whether they contain any defamatory information."(18)
The Darsee Case is a good example of the difficulty in judging the validity of information. Darsee was a researcher accused of falsifying data in journal articles. When colleagues discovered the errors, publishers quickly printed retractions and databases flagged the citations. However, a citation study found that authors continued to cite Darsee positively.(19) Even experts have trouble assessing the accuracy of information. There is no reason to believe the courts would hold a librarian to a higher standard.
Traditionally, lawmakers believe regulating information causes more harm than good. However, they distinguish between those who provide information for the good of society and those making a profit. Dun & Bradstreet, Inc. (D & B) vs. Greenmoss Builders, Inc.(20) explored this issue. D & B, a database producer, mistakenly reported that Greenmoss once filed for bankruptcy. This error damaged Greenmoss's reputation and credit rating. Although D & B corrected the mistake, Greenmoss sued for defamation and won. As part of its defense, D & B used freedom of speech. However, the court felt that, "First Amendment principles only applied in matters of public concern, whereas speech on matters of purely private concern is of less First Amendment concern. Regarding databases, the first amendment will not protect the information if it does not concern the public interest."(21) Here we see the importance of the librarian's work environment in the threat of malpractice. The private broker, working for profit, has a higher level of liability than a librarian working for the public.
The second point of proving malpractice requires the plaintiff to prove that the librarian knew the plaintiff's personal safety depended on the outcome of the exchange. This is obvious when someone asks for information related to medicine or law. Yet, many requests that seem safe could have severe consequences. In Alm vs. Van Nostrand Reinhold Co., the plaintiff sued the publisher when a user sustained injury following the instructions in a book, The Making of Tools.(23) Knowledge is a powerful tool. There is an element of risk in every information request. If all information requests are considered to have some type of impact on the user, how could one situation be singled out?
To further complicate the issue, every user has a unique reason for visiting a library. We serve many divergent purposes such as business, entertainment, research, academics, etc. The person requesting medical information may be a physician treating a patient or even the actual patient. The requestor may be a researcher writing a report or a student completing an assignment. Often, the user is just someone scratching an intellectual itch. This is such a gray area that creating any type of standard appears difficult.
The third point asks if it were reasonable for the plaintiff to rely on the information the librarian provided. Where do we place ultimate responsibility for the outcome? The plaintiff must prove that the librarian had a "duty of care" toward the user. Black's defines this as an "Obligation to conform to legal standard of reasonable conduct in light of apparent risk."(23) Since there are no cases involving librarians, a legal standard does not exist. What are the chances of making one?
The case of Donohue vs. Copiague School District illustrated the court's opinion on duty of care:(24) "Judicial recognition of the existence of a duty of care is dependent upon principles of sound public policy and involves the consideration of numerous relevant factors which include, iter alia: moral considerations arising from the view of society towards the relationship of the parties, the degree to which the courts should be involved in the regulation of that relationship, and the social utility of the activity out of which the alleged injury arises ... To entertain a cause of action for educational malpractice would require the courts not merely to make judgments as to the validity of broad education policies - a course we have unalterably eschewed - but more importantly, to sit in review of day to day implementation of these policies."
Mosley's article makes a valid point: "Seldom, if ever, can the answer be found merely by industrious search. Search only discloses elements which must be put together and given meaning by the application of logic."(25) The courts agree with this. While the librarian may pull together pieces of the puzzle, the assembly of those parts is solely the responsibility of the user, not the librarian. If librarians help in research and avoid providing conclusions, they appear safe.
Another aspect to consider is that much of what a librarian provides to the user is outside the librarian's direct control. Traditionally, society views librarians as mediators, linking people to knowledge they did not create. Usually, the librarian did not write the books or create the databases within the collection. These tools are often flawed. In one example, a group of students practicing online search skills failed to find known citations. A call to the database found that the vendor forgot to load five weeks of records. Despite recognizing their error, a search two months later revealed that the records still had not been loaded.(26) Considering the librarian's lack of control over the materials, the plaintiff may find it difficult to establish that relying completely upon the information they received was reasonable.
Disclaimers often help in this area. A proper disclaimer informs the user of the limitation of information retrieval. It lists flaws and helps create accurate expectation of the exchange. However, disclaimers do not completely insulate one from litigation. A disclaimer never absolves someone from a legal duty. Like a contract, disclaimers cannot usurp the laws. The courts often reject disclaimers.(27) The strength of a disclaimer is education: "... if you don't promise more than you can deliver, and don't unnecessarily raise the expectation of your client, you're less likely to face a lawsuit."(28) Finally, disclaimers may not apply to a third party. If a vender supplies the library with a disclaimer for a database, this disclaimer may not be valid for the users. The library may have to create a separate disclaimer between the library and the user.
Many states have directly resolved the issue of malpractice for their librarians. In 1986, Illinois passed legislation exempting librarians from malpractice. "A public employee acting in the scope of his employment is not liable for an injury caused by his negligent misrepresentation."(29) Other states have similar laws. Many public librarians are protected under sovereign immunity. Here, the government states that it cannot be sued for torts unless it specifically waives the right.(30) The existence and specifics of these exemptions vary from state to state.
The special librarian, by virtue of working for a parent organization, also receives a degree of protection. The courts look to the theory of respondeat superior, the "Universal common law principle that an employer must compensate anyone whose person or property has been injured by the wrongful (usually negligent) conduct of its employees while acting within the scope of their employment."(31) As an employee of an institution, the special librarian's employer is responsible for the actions of its employees. The organization becomes the target for litigation, not an individual librarian. While this does not absolve the librarian, the institution bares the brunt of the suit.
A broker is in a very different position. First, by actively soliciting services and charging fees, users often view them as experts in their field. Private brokers create a high expectation regarding the outcome of their services. The fact that they often repackage information and draw up contracts also takes them into legal areas not applicable to private or public librarians. In short, depending on how private brokers present themselves to their clients, the court may determine that acting upon the information they provide is reasonable. However, it appears that a plaintiff would have an easier time filing under other areas of law such as breach of a contract, not malpractice.
The final point in proving malpractice is deciding if the librarian failed to exercise reasonable care. Here the courts rely on the doctrine of reasonable man: "... the standard of a reasonable man under all the circumstances including the foreseeability of harm to one such as the plaintiff."(32) First, the standard states that they must compare us with reasonable members of our profession, not the absolute best. Second, the circumstances they compare us with must apply in all situations. Due to the unique nature of the information exchange, creating such a standard may be impossible. Even if similar circumstances could be found, two reasonable librarians may yield different results. Side by side comparisons do not necessarily yield consistent results.
There are many paths to information. Information is transitory. The same search statement run at different times may yield different results. In medicine, there are concrete standards. As a scientific-based discipline, procedures may be tested in controlled situations, repeated, and manipulated to discover concrete results. Duplicating this type of situation for the library environment is hard. There are too many variables and too many correct ways to approach the problem. To find information about medicine, one may search Medline, Biosis, the Internet, CD-ROMs, etc. We may even search the same databases using different interfaces. We may access Medline using GratefulMed, PaperChase, OVID, First Search, etc. These are all reasonable tools. Yet each could yield different results. Determining a standard that applies in all situations to all librarians calls for the application of scientific principles to a largely subjective process. The absence of a fair universal standard makes establishing malpractice difficult.
Other Legal Concerns
Several other legal issues may cause concern for librarians. First, synthesizing information for the user presents several distinct legal questions. Here, librarians go beyond pointing to sources. They summarize and repackage the results of a search for the enduser. The courts may view this as creating a product which falls under the laws of Strict Liability. Although not specifically an area of malpractice, it does present some real dangers.
When summarizing information, the court may consider the librarian an author. The librarian assumes responsibility for the contents of what they created. In Saloomey vs. Jeppesen,(33, 34) a pilot purchased navigation charts produced by Jeppesen. There was an error in the charts. His plane crashed, killing the occupants. Claiming the charts were a product, a suit was filed under Strict Liability. The defense claimed the charts were a service, not a product, and that they were not liable for the contents. However, because they did not create the charts individually, the courts ruled they were a product. "Without any individual tailoring or substantial change in contents they are thus simply mass produced."(35) By synthesizing and mass producing the information, the defendant was responsible for the accuracy of the charts even though he/she did not personally commit the error.
This raises an interesting issue. To save time and labor, librarians may be tempted to maintain fries of citations related to commonly asked questions. However, this may place the librarian at risk. There are certain types of questions where this would not be a problem. For example, ready reference questions, such as, how tall is the Washington Monument, do not change. Nevertheless, in most other instances, where information continually changes, maintaining a static file could cause harm. In Harbeson vs. Parke Davis, physicians prescribed a drug to a patient who was pregnant. They understood the drug to be safe in this regard. However, the child was born with birth defects. When they released the drug, it appeared safe for such usage. However, subsequent reports showed the drug did cause complications. The court ruled that, "... the physicians had a duty to acquaint themselves and their patients with this information."(36) Librarians must always remember that information changes: today's facts could be tomorrow's errors.
Privacy issues also create concerns. In 1971, the council of the American Library Association moved to "Formally adopt a policy which specifically recognizes its circulations and other records identifying the name of the library users to be confidential in nature."(37) However, as Pritchard and Quigley point out, "Ethical breaches, such as disclosing confidences, do not always give rise to a cause of action."(38) Remember, for a user to take legal action, they must prove that a tangible loss occurred. They may get the librarian fired, but without an actual loss, there may be little legal recourse.
There are several interesting situations involving this area. Librarians often receive requests for information from researchers who unknowingly are pursuing duplicate projects. The librarian may think they are doing them a favor by telling them of their competitor's similar pursuits. However, this is an error. The Congressional Research Service of the Library of Congress instructs a librarian who receives a duplicate request to treat each independently.(39)
Another case of abuse of confidentiality concerns the actions of a librarian working for a New York law firm. The librarian assisted lawyers specializing in corporate mergers. Through the lawyers' requests, the librarian pieced together what companies were planning to merge. He used this information to make more than $400,000 on the stock exchange until the Securities and Exchange Commission caught up with him.(40)
Why haven't we been sued? Proving malpractice is difficult. The unique environment of library work makes creating a fair and universal standard difficult. The courts do not appear eager to establish such a standard. The judiciary considers the free flow of information a crucial component of our society. Allowing malpractice claims to stand would create an unacceptable trade-off.
Common sense also plays a big role. Under malpractice, the librarian must recognize that the user's safety depends on the outcome. The paradox in this situation is that as risk to the user increases, the reasonableness of a user holding the librarian responsible for the outcome decreases. If someone has a life threatening illness, to base their actions solely on information they received from a library, without seeking professional medical advice, is ludicrous.
This does not imply that librarians are perpetually immune from malpractice. Law, like information, is in constant flux. If a librarian is reckless, the librarian will be held accountable. Nevertheless, what saves librarians is that we are not reckless, and there lies the key. If we remain in our roles of information providers and avoid issuing conclusions, the threat of malpractice appears slim.
Although the talk of litigation creates fear in some librarians, we may view it in a positive light. With professional recognition comes increased responsibility. As a "serious" profession, the results of our work must have impact. The discussion of litigation against librarians suggests a maturing of people's view regarding information science. We do have an impact.
1 Angoff, Allan. "Library Malpractice Suit: Could it Happen to You?" American Libraries 7(489):489 (September 1976).
2 Tomaiuolo, Nicholas G. and Barbara J. Frey. "Computer Database Searching and Professional Malpractice: Who Cares?" Bulletin of the Medical Library Association 8(4):367-369 (October 1992).
3 Wan, Ronglin. "Reflections on Malpractice of Reference Librarians." Public Libraries 33:305 (November/December 1994).
4 Steele, Thomas. "Public Laws Public Libraries: The Liability of Librarians for Negligence." Public Libraries 26:128 (fall 1987).
5 Black, Henry Campbell. Black's Law Dictionary. St. Paul, MN: West Publishing, 1990. p. 959.
6 Sykes, Phil. "Liability for Information Provision: Spectre or Reality?" Aslib Proceedings 43(5):190 (April, 1991).
7 Herin, Nancy J. "The Liability of the Hospital Librarian: Why You Need a Professional Medical Librarian." Hospital Topics 69(2):28 (spring 1991).
8 Reference and Adult Services Division, the American Library Association. "Proposed Behavioral Standards for Reference and Information Services." Gopher://alal.ala.org.70/00/alagophxii/alagophxiiirasd/50320005. Document (March 31, 1996).
9 Mika, Joseph J. and Bruce A. Shuman. "Legal Issues Affecting Libraries and Librarians." American Libraries 19(2):111 (February 1988).
10 Gray, John A. "The Health Sciences Librarian's Exposure to Malpractice Liability Because of Negligent Provision of Information." Bulletin of the Medical Library Association 77(1):35 (January 1989).
11 Gray, John A. "Personal Malpractice Liability of Reference Librarians and Information Brokers." Journal of Library Administration 9(2):74 (1988).
12 Gray, "The Health Sciences Librarian's Exposure," p. 34.
13 Gray, "Personal Malpractice Liability," p. 73.
14 Gray, "The Health Sciences Librarian's Exposure," p. 35.
15 Gray, "Personal Malpractice Liability," p. 77.
16 Mosley, Madison. "The Authorized Practice of Legal Reference Services." Law Library Journal 87:203 (winter 1995).
17 Dragich, Martha J. "Information Malpractice: Some Thoughts on the Potential Liability of Information Professionals." Information Technology and Libraries 8(3):270 (September 1989).
18 Dragich, p. 270.
19 Kochan, Carol Ann and John M. Budd. "The Persistence of Fraud in the Literature: The Darsee Case." Journal of the American Society for Information Science 43(7):491 (August 1992).
20 Denis, Sabine and Yves Poullet. "Questions of Liability in the Provision of Information Services." Online Review 14(1):24 (February 1990).
21 Denis, p. 24.
22 Wan, p. 306.
23 Black, p. 505.
24 Leone, Gerome. "Malpractice Liability of a Law Librarian?" Law Library Journal 3(1): 63 (winter 1990).
25 Mosley, p. 208.
26 Tenopir, Carol. "The Same Databases on Different Systems." Library Journal 16(8):59
27 Denis, p. 30.
28 Everett, John H. "Independent Information Professionals and the Question of Malpractice Liability." Online 13(3):65 (May 1989).
29 "Illinois Exempts Librarians from Malpractice." Wilson Library Bulletin 61:10 (December 1986).
30 Black, p. 1396.
31 Gray, "The Health Sciences Librarian's Exposure," p. 35.
32 Black, p. 1266.
33 Denis, p. 25.
34 Rees, p. 135.
35 Denis, p. 25.
36 Hafiler, Arthur W. "Medical Information, Health Sciences Librarians, and Professional Liability." Special Libraries 81(4):306 (fall 1990).
37 Intellectual Freedom Manual, 4th ed. Chicago: American Library Association, 1992. p. 126.
38 Pritchard, Teresa and Michelle Quigley. "The Information Specialist: A Malpractice Risk Analysis." Online 13(3):58 (May 1989).
39 Dragich, p. 268.
40 Dragich, p. 268.
Karl Cremieux is an independent Information broker specializing in health care information. Cremieux became interested in legal issues surrounding information provision while working as a volunteer librarian at Children's Memorial Hospital Chicago, a university affiliated teaching hospital. He may be reached via Internet at email@example.com.…