Monthly Archives: August 2014

Professional Errors

Rhetoric

Over more than three decades of legal practice, handling mergers, acquisitions, public and private offerings of securities, joint ventures, regulatory compliance and so forth, often in a context where participants have competing or unspoken interests and agendas, I have observed countless professional errors — some reflecting a lack of experience or knowledge; some reflecting misunderstanding or misapprehension of the implications of ambiguity; and some reflecting oversight. More often than not, the consequences are trivial and the adversities (if any) can be resolved.

Let’s clarify at the outset what we mean by “professional error.” We’ll start by an exclusion. We do not mean sloppiness that results in a sub-optimal outcome. In this regard, we cannot infer error from the occurrence of a sub-optimal outcome. A sub-optimal outcome may reflect an error or the sub-optimal outcome may occur notwithstanding an error-free performance by the professional. Conversely, we cannot infer the absence of error from an optimal outcome. The professional may have committed errors along the way that, in the event, did not make a difference to the outcome.

Let me further clarify: we are addressing medical, legal, accounting and similar errors. We are addressing errors that the professional has the ability, and aptitude, to avoid. We are addressing errors in a context of complexity where the error is not recognized at the moment it is committed (perhaps by commission or omission – or, most likely, oversight) and only after the fact becomes apparent to the professional.

The errors we address are invariably subject to remediation, albeit with costs, including, potentially, costs to the professional’s reputation. The errors may not be “fixable” (meaning, the slate cannot be wiped clean of the error) although the adverse consequences may be subject to mitigation, again (potentially) with costs that, but for the errors, would not have been incurred.

Finally, we are addressing a narrow subset of professional errors: the error recognized (initially) by, and only by, the professional who committed the error. We are addressing the context when the professional recognizes or begins to suspect commission of an error.

A final introductory point: the errors we are considering do not present themselves labeled as errors – they are not self-defined. They are errors because, at least for our purposes, the professional who “committed” the error(s) believes he has committed them. In this sense, the errors we are addressing are always subjective; they may or may not be viewed by others as errors. This potential lack of consensus is common, where decisions, omissions, or oversights occur within a complex swirl replete with unsorted data; where blame is beside the point; where the well-being of the client or patient is the point.

I will dwell no further on sources and manifestations of errors. The pressing question is what the professional should do when he or she recognizes or suspects an error?

Years ago I wrote a piece that addressed this question, and, having recently re-read it, I am comfortable that my recommendations remain as applicable today as a decade ago.

First, push aside any (natural) inclination to ignore the error. Disregard of the error will generally only increase ultimate remedial costs.

Second, consult a trusted colleague. If the recognition of an error generates consternation for the professional (as would be expected of a conscientious professional) then involvement of a skilled, experienced colleague will introduce a fresh perspective largely free of emotional bias that might skew the development of a sound remediation strategy.

Third, avoid self-flagellation. Easier said than done. Many decisions and judgements that we label as erroneous are not in fact erroneous in the common sense usage of the term. After all, we operate in a context of ambiguity and partial information. We may recognize the correlation or causal link of, for example, A and B (if A then B). But often the strength, trajectory and duration of the relationship presupposes the presence of C and absence of D. And we may have limited or no control over the presence, absence or extent of C or D.

Finally, for the skilled and creative professional, who acts with integrity and is committed to the patient or client, adversity is not (or should not be) a weight that suppresses initiative and engagement; rather, it is (or should be) an opportunity and a responsibility for the professional to “rise to the occasion” and to seek a creative and effective solution and resolution.

Fortitude, perseverance, creativity, integrity and passion, when fused together, become a potent antidote to most setbacks. Here is where lofty rhetoric animates and propels identification and implementation of solutions.

The Asymmetry of Poetic Emotion

Poetry

Rarely do we offer declaratives on this Blog. They are generally simplistically misleading, empty, coercive or the like. They speak isolated from the contingencies and uncertainties of context.

May I diverge with a Saturday morning declaration: the emotional force of poetry is one-directional: poetry exerts its emotional force upward; and upward only. When spirits are high, poetry lifts them higher, and when they are low and sinking, poetry reverses the course, infusing our imaginations with a wonderment and marvel that rescue, restore and recover our spirits. When in disgrace with fortune and men’s eyes, observed the Bard, I all alone be-weep my outcast state, And trouble deaf heaven with my bootless cries, And look upon myself, And curse my fate…..but soon a lark will appear and sing hymns to heaven’s gates…we join with, and become one with, the Bard as we think of, remember, thy sweet love; and soon, stirred and inspired, calmed and ennobled, with that thought and memory, we scorn to change our state with kings.

Medical Statistics – Beware of Precision

Economics

Those of us uninitiated into the patois of medical statistics are prone to misunderstandings. If these misunderstandings were “academic” then we might approach them with a leisurely attitude. But often decisions are thrust upon us without warning and the medical literature and physicians do not commonly translate the statistics in a readily comprehensible way.  Our decisions may reflect regrettable choices with haunting consequences.

We have two threshold issues: (1) the reliability of the statistics in light of their purposes and (2) the degree of clarity in the presentation of the statistics.

As to the first point, let’s take as a given the soundness of the underlying studies and data collections. This leap glosses over critical issues but these are not our immediate concerns.  One caveat: even the most elaborate and precise data sets, presented in elegant math,  rest on simple premises that are commonly presented as givens and as non-controversial –  in other words, biases and choices cloaked in the (falsely) reassuring neutrality  of numbers.

We transition.

How often are averages presented with no articulation as to whether they represent the median, mode or mean? Large issue loom in the choice. One outlier skews the mean. Scatter leaves the median, without more, meaningless. And so forth. Opaqueness lurks around risk statistics: are they measuring absolute or relative risk? Is a 50% risk reduction a reduction of an underlying risk of .00001% or a “real” reduction? Should adjustments be made for “priors” within a Bayesian methodology? We could go on and on.

Even laymen with moderate understandings of statistics cannot divine clarity where the assumptions and methodology are unarticulated.

Just as data collections grow exponentially so does public access to the data. But without a plain English explanation of what the statistics mean, we risk costly and regrettable opportunities to guide our choices and the patient, family and society pay dearly for this lack of clarity.

Reading Poetry – Reflections Forty Years Later

Poetry

Looking back 40 years after I first encountered Wordsworth’s magical “Intimations of Immortality,” this poem embodies, sustains, indeed inspires (poetic) reflection, engagement,  and understanding.

In hindsight, I see a youth, nearly a youthful adult, inhibited, inexperienced, intimidated, insecure, unwittingly unable to relax into the marvels of the introspections of the poem.

Three decades and countless turns and returns to the Intimations, with each reading and with the alterations in hopes and fears, encounters with triumph and defeat, joy and despair, peace and distress, with distance behind and the horizons disconcertingly apparent, I at last find myself in the narrator’s shoes. In and from this stance I achieve the comfort that comes with familiarity and empathy.

As with the narrator’s experience of nature, as he casts his eye on meadow, grove, and stream, so do I cast my eye on the readings and re-readings that layer my journey from that initial encounter to my encounter today.

MultiDisciplinary Thinking and Moderation

Philosophy

We’ll leave to others the exploration of the evolution of the “specialist,” a term that denotes a construct that presupposes inclusions and exclusions, and connotes heightened expertise within the bounded areas claimed by the specialists as their own.

We do not write on a blank slate, and our specialties (the bounded areas) present themselves, as it were, through the existing divisions that the specialists cultivate, perhaps to deepen their explorations, perhaps to exclude the uninitiated from trespassing, perhaps to blend in with fellow specialists.   The reasons multiply as we search to catalogue them, and the intentions that once propelled the colonists of the uncultivated areas to populate them with specialized knowledge are largely now recoverable only through the imaginations of the specialist known as “historian.”

As members of one, or perhaps two, specialties, we have the responsibility and the right to cross-boundaries, to re-arrange boundaries, to cross-fertilize them, and to seek to inform our perspectives with the riches of areas defined only by our individual capacities to apprehend and comprehend.

Why leave economic policy solely to the economist when the prescriptions that preliminarily follow from of their regression analyses should be informed by the historian, psychologist, anthropologist and poet?  Why leave statistics solely  to the mathematicians and statisticians when the criteria to govern selections, prioritizing and weighting should be considered by the philosopher, sociologist and artist? And why leave poems to the literature professors if the leaving leaves us unable to engage with the poems without intermediation?

Do I oversimplify? And erect straw-men? Of course. Do I advocate insurrection by the non-specialists and invasions that cross the specialist barriers? Of course. But, as with nutrition, all in moderation.

Lost in Details

Economics

The current controversy over tax-inversions illustrates the costs to all of us of shrill rhetoric.

Is it too much to request that the editors of news media insist that those who advocate through them (including politicians quoted in the media) state the specific goals they seek to achieve through a stance on an issue and how the positions reflected in their stance achieve their stated specific goals?

As to tax-inversions, conclusory sound bites should be replaced with concrete questions such as: (1) is current tax law promoting or inhibiting our competitive standing (and how and by what criteria are the impact(s) being measured and who is doing the measuring) and (2) might not the (inevitable?) increase in after-tax income as a result of an inversion enable the company to expand services, offer new products, hire more employees, pay higher wages, and increase dividend to shareholders (many of whom are holders of 401(k) and pension plans) and (3) would the additional taxable income created through such expansion yield a higher net amount of federal tax revenues? Would an affirmative answer to any of such questions alter the views of those opposed to inversions?  Would a negative answer alter the views of those supportive of inversions?  Or would evidence contrary to our presumptions and assumptions simply mean we haven’t collected enough (relevant) evidence?

If the above questions are not the “right” or the “only” questions – and of course I present them as illustrative of a range of possible questions – then the discourse should expand or change to accommodate other or additional questions.  If we can move closer to consensus on the “questions” and insist on greater specificity on our objectives and the data that supports our positions, then we should be able more clearly to assess whether our disagreements are over goals or over (mere) causes and effects, in which latter case, let’s implement procedures to verify or refute the anticipated outcomes, and time periods over which to test the causes, effects, and outcomes.