12 Rutgers Computer & Tech. L.J. 1 (1986-1987)
Professional Malpractice and the Unauthorized Practice of Professions: Some Legal and Ethical Aspects of the Use of Computers as Decision-Aids

handle is hein.journals/rutcomt12 and id is 13 raw text is: PROFESSIONAL MALPRACTICE AND THE
UNAUTHORIZED PRACTICE OF
PROFESSIONS: SOME LEGAL AND
ETHICAL ASPECTS OF THE USE OF
COMPUTERS AS DECISION-AIDS
MARSHAL S. WILLICK*
I. INTRODUCTION
The list of occupations constituting professions has grown over the
years, and today is generally considered to include physicians, surgeons,
dentists, pharmacists, attorneys, architects, psychiatrists, engineers, ac-
countants, and others.' Malpractice is an application of negligence
law by which liability is imposed for professional misconduct. Malprac-
tice liability is usually imposed, not when professionals fail to achieve
certain results, but when they fail to exercise due diligence and rea-
sonable care in their practices.2
The acts constituting malpractice differ from profession to profes-
sion, but the term is generally used as a label for the conduct of practi-
tioners who act without exercising the learning, skill, and care
ordinarily possessed and practiced by others in their fields.3 While it is
acknowledged that, for example, doctors' malpractice will usually cause
different harms than that of accountants, the principles applied ...
appear to be quite similar,,4 and the differences will therefore not be
examined herein.
It is against this legal backdrop that computer systems will be evalu-
ated as professional tools. The inertia of the legal system will cause
computers to be treated, at least at first, just like other instrumentalities
used by professionals in their practices. Changes in the law tend to
result from changes in the way professions are actually practiced, rather
than from the potential of available new technologies.
© Copyright reserved 1986 by Marshal S. Willick.
* Partner, LePome & Willick, Las Vegas, Nevada. B.A., University of Nevada,
Las Vegas, 1979; J.D., Georgetown University Law Center, 1982.
1. See W. KEETON, D. DOBBS, R. KEETON, D. OWEN, PROSSER & KEETON ON
THE LAW OF TORTS § 32, at 185-86 (5th ed. 1984) [hereinafter PROSSER & KEETON].
2. See, e.g., Durflinger v. Artiles, 234 Kan. 484, 489-90, 673 P.2d 86, 92 (1983)
(physician not a guarantor of good results; negligence required for malpractice recovery).
3. See, e.g., George v. Caton, 93 N.M. 370, 376-77, 600 P.2d 822, 828 (Ct. App.)
(addressing legal malpractice), writ quashed, 93 N.M. 172, 598 P.2d 215 (1979).
4. See PROSSER & KEETON, supra note 1, § 32, at 186.

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