A Legal Question: Due Diligence vs. Increased Duty to Act


July 29, 2009

To those of us without legal training, law seems much more of an art than a science as evidenced by the fact that two lawyers could successfully argue opposite sides of a question. Consider the question, “Should you do less due diligence in the risk management of your students’ study abroad program in order to avoid a theoretical increase in your institution’s liability exposure?”

I have heard from a number of university education abroad program directors that this is exactly what they are being advised by their legal counsels, specifically as it regards student screening for programs. The argument goes like this: If we know what pre-existing physical and psychological conditions students have when they begin the program, we will have greater responsibility for managing them. If, however, we do not know about them, and we give students information about local availability of medical and counseling resources, etc., we can make the argument that responsibility for all medical and mental health issues reside with the students and not with the institution.

Most education abroad practitioners would support efforts to have students take responsibility for their own health. And, if you believe that the work that you do in education abroad is important, then you would certainly support protecting your institution from ruinous lawsuits.

What makes for the greatest good in this situation? Is it reasonable to expect all or even most college students would do a good job managing their own medical and mental health care in an unfamiliar environment? For most college students, healthcare during childhood and adolescence was managed by their parents, while beyond that it was a very user-friendly college campus healthcare system. Given this limited experience in self-reliance, are college students really prepared to successfully navigate or access healthcare in a country with a potentially very different system and where they may not speak the language?

Likewise, a similar argument is used in advising against having study abroad faculty leaders trained in first aid. The logic being that if they have training, then the program will be held to a higher standard of care and thereby have greater liability exposure. This was a hot debate in the field of adventure education 30 years ago. As it quickly became apparent that such training was instrumental in preventing, or at least mitigating the potential severity of illness and injury, training quickly became the standard for that field.

Forgetting for a moment the moral issue of accepting greater harm for your students in exchange for reduced liability exposure, is this really an effective approach for avoiding lawsuits? Increasing an institution’s responsibility and potential for liability for student health and safety in study abroad can indeed be a consequence of trying to create a robust risk management strategy. This, however, does not generate lawsuits in itself; lawsuits occur when students are injured, become ill, or have a horrendous experience. They are especially likely to occur when a student or their family believes that the aforementioned was avoidable or that the institution’s response to the event was inadequate. Were I in court defending against charges that we had done too little (i.e., we were negligent in our duty), I would much prefer to be in a position of pointing out the specifics of a robust risk management strategy than to be parsing legal concepts of reduced responsibility. That would especially be the case when facing the victim or their family. The reduced responsibility argument might be the more effective one in limiting the size of an award once you’ve gotten that far along in a legal proceeding. Clear evidence of doing excellent due diligence and a balanced response when untoward events do happen, is more likely to discourage a lawsuit rather than circling the wagons and denying responsibility. The best way to avoid liability suits is to keep our students as safe as they should be. Traveling abroad has inherent risks and there is no such thing as keeping our students totally safe if we are going to conduct even mildly ambitious programs. By doing reasonable risk management, however, which includes understanding our students’ physical and mental health issues, we can keep them as safe as they should be.

By Bill Frederick