Expert Witness Blog

In Clinical Standards in Medicine medical expert witness Barry E. Gustin, MD, MPH, FAAEM, writes:

Potential limitations should be recognized and dealt with such as the possibility that a particular standard becomes obsolete because of new discoveries or advances; or situations where environmental factors such as disaster, overcrowding, or multiple high acuity emergencies negate the applicability of standard clinical policies. Likewise, policy standards can never supersede the physician’s clinical judgement which must be taken as the final word in making patient care decisions. This is because of the immense number of clinical variables and continually changing circumstances in both stable and unstable patients with complex multifactorial systemic medical problems.

For maximum effectiveness and utility, it is clear that standards should be developed in the areas that place the patient at highest risk for death or debility. For the physician, these are often the areas of greatest liability. Also, it is important that standards are developed for common presenting complaints rather than for obscure uncommon entities. Finally, because cost-containment has become a central issue, clinical standards should also target those conditions or situations that may result in high charges.

In Clinical Standards in Medicine medical expert witness Barry E. Gustin, MD, MPH, FAAEM, writes:

The existence of clinical standards would enable malpractice litigators to be more selective in their choice of cases. In situations where a clinical standard was followed but where there was an adverse patient outcome, litigators would be less inclined to pursue the matter. In situations where deviation from clinical standards, the litigation process would still allow physicians to explain their reasoning and, in and of itself, is not de facto proof of negligence.

The actual development of clinical standards is complex, time consuming and expensive. In general, these standards should be developed by physician organizations, particularly the specialty societies utilizing appropriate ancillary input from administrators, economists, etc. They should be based on current information and clinical experience and be as comprehensive and specific as possible. They should be periodically reviewed and revised and widely disseminated.

McClatchy Company, the third largest newspaper company in the US, reports that America’s five largest banks, which already have received $145 billion in taxpayer bailout dollars, still face potentially catastrophic losses from exotic investments if economic conditions substantially worsen, their latest financial reports show.

Corporate governance expert witness and president of Everest Management Gary Kopff has scrutinized the big banks’ financial reports. He noted that Citibank now lists 60 percent of its $301 billion in potential losses from its wheeling and dealing in derivatives in the highest-risk category, up from 40 percent in early 2007. Citibank is a unit of New York-based Citigroup. In Monday trading on the New York Stock Exchange, Citigroup shares closed at $1.05.

McClatchy.com writes:

In Clinical Standards in Medicine medical expert witness Barry E. Gustin, MD, MPH, FAAEM, writes:

Forces both inside and outside of medicine are responsible for the trend towards the development of clinical standards. Physicians have been motivated by their desire to establish acceptable levels of care within the various specialties. This ultimately homogenizes and standardizes the basic approach to patient’s problems, is patient-centered, allows for the development of quality assurance and improvement programs, and demonstrates to the public that physicians as a group are concerned about the quality of care they provide to their patients.

Forces outside of medicine, however, are probably more potent than these internal forces at bringing increasing pressure to the issue of standards development. Malpractice carriers see the creation of widely-accepted clinical standards as one route towards reduced malpractice losses. Ditto for several states, including Maine and New Jersey, which have mandated the development of clinical standards because of their involvement in underwriting malpractice insurance plans.

In Discussion of Insurance Capital as a Shared Asset, actuarial expert witness Robert Bear discusses what he describes as Donald Mango’s ground breaking work Insurance Capital as a Shared Asset:

Mr. Mango differentiates between consumptive and non-consumptive use of an asset. A consumptive use involves the transfer of a portion or share of the asset from the communal asset to an individual, such as in the reservoir water usage and fishery examples. Nonconsumptive use involves temporary, limited transfer of control which is intended to be non-depletive in that it is left intact for subsequent users. Examples of non-consumptive use indude boating on a reservoir, playing on a golf course or renting a hotel room.

While shared assets are typically used in only one of the two manners, some shared assets can be used in either a consumptive or non-consumptive manner, depending on the situation. Mr. Mango gives the example of renting a hotel room. While the intended use is benign occupancy (non-consumptive), there is the risk that a guest may fall asleep with a lit cigarette and burn down a wing of the hotel (clearly consumptive).

In Discussion of Insurance Capital as a Shared Asset, actuarial expert witness Robert Bear discusses what he describes as Donald Mango’s ground breaking work Insurance Capital as a Shared Asset:

Actuaries frequently allocate capital to line of business or individual risk in an effort to calculate risk loads or evaluate profitability by calculating a risk adjusted return in the form of a return on equity (ROE) metric. Concerns have been expressed about ROE methods, especially the fact that the value inherent in the unallocated surplus is ignored (the entire surplus supports each and every risk). In 2005 ASTIN Donald Mango’s paper on “Insurance Capital as a Shared Asset” has introduced a method that eliminates the need for allocation of capital which he believes is more grounded in insurer realities.

Donald Mango treats insurance capital as a shared asset, with the insurance contracts having simultaneous rights to access potentially all of that shared capital. Shared assets can be scarce and essential public entities (e.g., reservoirs, fisheries, national forests), or desirable private entities (e.g., hotels, golf courses, beach houses). The access to and use of the assets is controlled and regulated by their owners; this control and regulation is essential to preserve the asset for future use. The aggregation risk is a common characteristic of shared asset usage, since shared assets typically have more members who could potentially use the asset than the asset can safely bear.

In What the Defendant Can Do Wrong,

security management expert witness Ira Somerson, BCFE, CPP, CSC, writes that “failing to preface your security plan with a risk assessment would violate standard security industry practices. If your risk assessment lacks sufficient qualitative (unscientific) or quantitative (scientific) analysis, it probably will be below a standard security industry practice.”

Risk Assessment is the art and science of identifying security vulnerabilities, measuring the likelihood that each vulnerability will occur (foreseeability), the opportunity for each to occur, measuring each event’s impact upon the organization’s assets (criticality) and prioritizing each identified vulnerability in comparison to all others (queuing).