When Does Professional Incompetence Become a Crime?

Recently, I had a conversation with a “water treatment” consultant. He was voicing his opposition to the ASHRAE Standard (see previous post), arguing it was misguiding and self-serving because he believed its primary existence was for adding to one of the committee member’s revenue streams.  He went on further, in fact, to quote one of his customers who allegedly stated, “If it were not for ASHRAE 188p, I would not even care about this legionella issue.”  This statement is precisely why the Standard must exist.  This is why the consultants that support this issue must have an arms-length relationship with the clients.  Further, Blue Earth Products has had a “consultant” cause a client to reduce his use of our product Clearitas® 301 “for budgetary reasons.” Instead, the consultant now performs hyper-chlorination for $10,000/month (versus about half that for Clearitas 301 in the same facility).   The consultant is not only using a more costly method, he is further damaging the facility’s infrastructure with the excessive use of hyper chlorination (not to mention hyper chlorination is not an effective legionella management tool).  What will happen when the facility, in an ill-fated effort to “save money,” actually kills someone?  Will this particular consultant be held responsible civilly and criminally? No.  Not that they necessarily should not be, but they will not.

So when do we, as a society, start holding people responsible for the damage?  When does this become a crime and not just incompetence?  Where does the responsibility lay and how far reaching should it go?   When I tell outsiders about the Standard, I unfortunately cannot feel comfortable that the Standard will actually solve much.  It lays out a well-intentioned process to test for the presence (on a regular basis) in a facility. Then it provides information on what to do when a facility does have a positive test and how to manage the issue so that it does not harm people.  The bad news is that the standard cannot regulate people –  owners of buildings do not care about the problem, consultants that have a conflict of interest in their “solution, “ and  operators that do not test because they do not “want to know.”

This is precisely why the Plaintiffs’ Bar exists – to protect the unwary from the unprincipled.