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Ladies and Gentlemen of the Jury (Jun-09)

How should the US judicial system determine compensation for "pain and suffering"  Take a look at a complicated case. 

Ladies and Gentlemen of the Jury

Let's suppose that you're a member of a jury for a court case involving an industrial accident. A 29-year-old employee, Charlie, has suffered brain damage in this accident.

Charlie was once a skilled worker who operated complex machinery. Since the accident, he has functioned cognitively at the level of a three-year-old child, and there is no chance for improvement of his state. Charlie has no visible scars on his body and is not experiencing physical pain from the accident.
 
Furthermore, as a result of the brain damage, Charlie is emotionally happier than he was before the injury. Several witnesses have testified that Charlie was somewhat volatile before the accident—he got angry easily and had bouts of sadness. The witnesses noted that since the accident Charlie is always happy, despite his cognitive impairment.
 
You are now in the jury room. You and your fellow jury members have decided that the factory where Charlie worked had inadequate safety precautions. The jury will return a verdict for the plaintiff, Charlie. The jury has already agreed on a sum to compensate Charlie for his medical expenses, his ongoing medical care, and lost wages for the rest of his life.
 
Charlie's attorney has asked for an additional monetary award for pain and suffering. Which statement below most closely describes your thoughts, as a juror trying to decide on an award for pain and suffering?
 
  • Charlie should get a very large award for pain and suffering, since his life overall has been so adversely affected by the accident.
  • Charlie should get a moderate award for pain and suffering, since he has suffered cognitive impairment, but he does not have ongoing physical pain.
  • Charlie should get a very small award for pain and suffering, since he is actually happier now than he was before the accident.
  • I don't think that the US judicial system should allow awards for pain and suffering at all.
  • I'm not sure what pain and suffering means in a legal sense, and I don't know what to award to Charlie.

How do your answers compare?

In a recent article, CBDSM's Peter A. Ubel and Carnegie Mellon University's George Loewenstein challenge the conventional view that awards for pain and suffering should be made literally as compensation for feelings of pain and of suffering. Ubel and Loewenstein argue from their expertise in the psychology of judgment, decision making, adaptation, and valuation of health states.

They cite many studies showing that people adapt well to very serious disabilities, such as paraplegia and blindness, returning fairly quickly to near-normal levels of happiness after a period of adjustment. Thus, if juries make pain-and-suffering awards literally on the basis of misery, such awards would be unacceptably small.

But Ubel and Loewenstein delve further. Even though people with serious disabilities have normal levels of happiness, they would still prefer not to have the disabilities. "We believe that the reason for this discrepancy between hedonic measures and stated preferences . . . is that people care about many things that are not purely hedonic, such as meaning, capabilities, and range of feeling and experience."

In enlarging the definition of pain and suffering, Ubel and Loewenstein do not propose to merely add to the factors that a jury must take into consideration in the current judicial system. Indeed, the authors find several problems with the current system, including inequities in compensation and the evaluation of injuries in isolation. They include in their article a three-part proposal for a radical change in judicial procedure.

First, they would recruit a random panel of citizens to compile and categorize injuries. Groups of injuries would be ranked on the basis of the appropriate level of compensation for those injuries. This panel would call on experts to inform their decisions. "Decisions about an injury's proper category would take into account not only the emotional consequences of the injury but also the person's ability to function across important life domains—social functioning, work functioning, sexual functioning, sleep, and the like."

This list of grouped and ranked injuries would have some similarities to the list of health conditions that the State of Oregon created in the 1990s to help allocate Medicaid funds. Another existing model for this list would be lists used to make decisions about workers' compensation claims—for example, benefits for loss of a thumb are twice as great as benefits for loss of a second finger.

Second, Ubel and Loewenstein propose a mechanism for determining monetary damages. Using the list produced by the citizen group described above, federal or state legislators could determine a maximum award for pain and suffering. Based on this damage cap, a range of awards would be set for each category of injuries.

Third, the juries would enter in, using the guidelines set up in the steps described above and then tailoring awards to the individual circumstances of each case. Under this plan, juries would do what people tend to do best: compare and rank things. Ubel and Loewenstein note that "juries could help determine if the victim has extenuating circumstances that should drive the award to either the lower or upper end of acceptable compensation for that group of injuries. . . Our proposal does not do away with jury trials but instead enables juries to involve themselves in the kind of judgments they are best suited to make."

Ubel and Loewenstein conclude, "The determination of pain-and-suffering awards should be revised to take account of recent advances in understanding human judgment and decision making."

Read the article:

Ubel PA, Loewenstein G.Pain & suffering awards: It shouldn't be (just) about pain & suffering. Journal of Legal Studies 2008;37(2):S195-216.

Between February 3 and April 13, 2012, in collaboration with the Taubman Health Sciences Library and the Center for the History of Medicine, CBSSM is co-sponsoring an exhibit entitled "Deadly medicine: Creating the Master Race" on the 4th floor of the Taubman library.  This traveling exhibit is a spin-off of the larger exhibit that debuted at the U.S. Holocaust Memorial Museum in Washington, DC.  For more information about the exhibit, click here.

Journeys in Genetics: Ethical, Legal, and Social Implications

Tue, September 27, 2016, 3:00pm
Location: 
2610 SPH I

Journeys in Genetics: Ethical, Legal, and Social Implications
with Toby Citrin, J.D. and Scott Roberts, Ph.D.


September 27, 2016
3:00 - 4:00 p.m.
2610 SPH I
1415 Washington Heights
Ann Arbor, MI 48109-2029


Sponsored by Certificate Program in Public Health Genetics 20th Anniversary Seminar Series


"Journeys in Genetics" is an interactive series of seminars that will highlight the unique personal and professional paths that the Certificate Program in Public Health Genetics (CPHG) faculty members have traversed throughout their careers in the field of public health genetics. In this seminar, Professor Citrin will describe a phone call from Detroit's Mayor in 1970, a request from Francis Collins in the early '90s, creation of the Center for Public Health and Community Genomics in 2001, and projects engaging minority communities in learning about genetics and helping to shape policies to guide the field. Professor Roberts will discuss his research program on how individuals appraise and respond to personal genetic information in contexts including genetic susceptibility testing for Alzheimer's disease, cancer genomics, and direct-to-consumer genetic testing.

Michael Volk, MSc, MD

Alumni

Michael Volk was an Assistant Professor of Medicine in the Division of Gastroenterology and Hepatology at the University of Michigan. His clinical practice focuses on the care of patients with liver disease, including those undergoing liver transplantation and those with hepatocellular carcinoma. His research interests focus on the ethics of resource allocation, patient and physician decision making, and chronic disease management. In particular, he has conducted a series of studies designed to improve the way decisions are made about using high risk liver transplant organs.

Last Name: 
Volk

What is the price of life? (Aug-03)

Do you think that your life is worth more than the amount that the government usually uses as the maximum to spend to provide one year of life?

Imagine that you are a member of a government panel that is trying to decide how cost-effective a medical treatment must be in order for the government to cover the costs of the treatment. Suppose that a certain treatment could provide one additional year of life to an otherwise healthy person. What is the highest amount the government should be willing to pay per person for this treatment?

How do your answers compare?

For the past twenty years, the figure most often used as the maximum amount to spend to provide one year of life has been $50,000. This figure was originally proposed since it was the cost of a year of kidney dialysis, a lifesaving treatment that the U.S. government funds in Medicare.

Should the number be higher or lower than the current standard?

Conventional wisdom would suggest that the number be higher to take into account the inflation that has occurred in the years since the standard was developed. Current practices such as annual Pap smear screening for women with low risk for cervical cancer, which has a cost of $700,000 per year of life gained, also suggest that society is willing to pay more than the current standard for a year of life. The authors of the cited article recommend, based on current treatment practices and surveys of the general public, that the cost-effectiveness threshold should be revised to be around $200,000.

Should the number increase, decrease, or stay the same over time?

Again, it seems that the threshold amount should increase over time due to inflation. However, other factors come in to play that affect the value.

Since new technologies are emerging all the time, some of which will be deemed cost-effective, there will be more and more treatments to be offered in the future. Also, the rate of use of treatments is an important consideration, because even if a new treatment is more cost-effective than an old one, if it is used more often it will end up costing more to society overall. With more treatments becoming available and more people being given treatments, the threshold cost will probably have to decrease so that insurance companies and the government can keep up with the increasing availability and demand.

Why is this important?

Insurance companies and government health care entities face a continuing struggle when trying to determine which medical treatments to cover. Health care costs are increasing rapidly, so these groups will be facing even tougher decisions in the future. Establishing cost-effectiveness guidelines would be extremely helpful as an aid to making the decisions about treatment coverage. Evidence shows that the current threshold is probably not an accurate reflection of the desires of society or actual prescribing practices. It needs to be adjusted to become useful once again, and must be reevaluated periodically to make sure the value keeps up with trends in the health care market, rather than being left alone without question for two decades as is the current situation.

For more information see:

Ubel PA, Hirth RA, Chernew ME, Fendrick AM. What is the price of life and why doesn't it increase at the rate of inflation? Archives of Internal Medicine. 163:1637-1641, 2003.

Funded by National Caner Institute

Funding Years: 2003-2014

 

PI: Angela Fagerlin

Brian Zikmund-Fisher gave an oral presentation at The Forum 10 hosted by DMAA: The Care Continuum Alliance, Washington, DC.

Funded by the National Institutes of Health/Brigham and Women's Hospital/Boston University

Funding years: 2010-2013

The rapid identifcation of genetic risk factors for common, complex diseases poses great opportunities and challenges for public health. Genetic information is increasingly being utilized as part of commercial effors, including direct-to-consumer (DTC) genetic testing to provide risk information on common diseases to consumers. Very few empirical data have been gathered to understand the characteristics of DTC test consumers, the psychological, behavioral and health impact (clinical utility), and the ethical, legal and social issues associated with DTC services.

In the proposed research, we will survey users of the two leading US companies providing DTC genetic testing (23andMe and Navigenics) regarding their response to genetic test s for common diseases of interest, including heart disease, diabetes, Alzheimer's disease (AD), arthritis, and breast, colon, lung and prostate cancers. Each company now has thousands of customers and each anticipates extensive sales in coming years. Each has agreed to allow our group to survey consumers using third-party data collection and analysis procedures that will enable an independent consideration of the benefits and risks of DTC testing in this format. The companies have also agreed to provide genetic test information (with respondents' permission) for analyses. A total of 1000 consumers (500 from each company) website will be surveyed via the Internet at three time points: 1) before receipt of genetic test results; 2) approximately two weeks following receipt of test results; and 3) six months following receipt of results.

More information: http://www.psc.isr.umich.edu/research/project-detail/35031

PI: Scott Roberts

Co-I: Mick Couper

Funded by the U.S. Centers for Medicare and Medicaid Services

Funding Years: 2014-2018

The central objective of the Healthy Michigan Plan is to improve the health and well-being of Michigan residents by extending health care coverage to low-income adults who are uninsured or underinsured. The program also introduces a number of reforms, including cost-sharing for individuals with incomes above the Federal Poverty Level, the creation of individual MI Health Accounts to record health care expenses and cost-sharing contributions, and opportunities for beneficiaries to reduce their cost-sharing by completing health risk assessments and engaging in healthy behaviors. This project conducts the evaluation of Michigan's Medicaid expansion, the Healthy Michigan Plan (HMP).

PI(s): John Ayanian

Co-I(s): Tammy Chang, Sarah Clark, Matthew Davis, A M Fendrick, Susan Goold, Adrianne Haggins, Richard Hirth, Edith Kieffer, Jeffrey Kullgren, Sunghee Lee, Ann-Marie Rosland

CBSSM Seminar: Darin Zahuranec, MD

Wed, January 20, 2016, 3:00pm to 4:00pm
Location: 
NCRC, Building 16, Room 266C

Darin Zahuranec, MD


Assistant Professor, Neurology

Title:  Improving decisions on life-sustaining treatments after stroke

Abstract:  Individuals with acute stroke face the sudden onset of new deficits, along with a need to make many decisions about medical treatments with impact on the potential for survival and long-term disability. This talk will review the challenges in decision-making after acute stroke and discuss possible solutions for the future.

 

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