Brian J. Zikmund-Fisher is an Associate Professor in the Department of Health Behavior and Health Education, University of Michigan School of Public Health, as well as a Research Associate Professor in the Division of General Internal Medicine, University of Michigan Medical School. He has been part of CBSSM and its precursors at U-M since 2002 and acts as CBSSM Associate Director.
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Scott Roberts, PhD, is Professor of Health Behavior & Health Education at the University of Michigan’s School of Public Health (U-M SPH), where he directs the School’s Public Health Genetics program and teaches a course on public health ethics. A clinical psychologist by training, Dr. Roberts conducts research on the psychosocial implications of genetic testing for adult-onset diseases.
Dr. Harris’ research examines issues at the intersection of clinical obstetrical and gynecological care and law, policy, politics, ethics, history, and sociology. She conducts interdisciplinary, mixed methods research on many issues along the reproductive justice continuum, including abortion, miscarriage, contraception, in vitro fertilization (IVF), infertility and birth, and racial, ethnic, and socioeconomic disparities in access to reproductive health resources.
Dr. Fagerlin served as Co-Director of CBSSM from 2010-2015. She is currently Chair of the Department of Population Health Sciences at University of Utah School of Medicine and Research Scientist, Salt Lake City VA Center for Informatics Decision Enhancement and Surveillance (IDEAS)
Reshma Jagsi, MD, DPhil, is Professor, Deputy Chair, and Residency Program Director in the Department of Radiation Oncology and Director of the Center for Bioethics and Social Sciences in Medicine at the University of Michigan.
She graduated first in her class from Harvard College and then pursued her medical training at Harvard Medical School. She also served as a fellow in the Center for Ethics at Harvard University and completed her doctorate in Social Policy at Oxford University as a Marshall Scholar.
Christian Vercler is a Clinical Associate Professor of Pediatric Plastic Surgery at the University of Michigan C.S. Mott Children’s Hospital. He is a service chief of the Clinical Ethics Service in the Center for Bioethics and Social Sciences in Medicine (CBSSM). Dr. Vercler has a special interest in ethics in surgery and he holds master's degrees in both Theology and Bioethics. He has a passion for teaching medical students and residents and has won teaching awards from Emory University Medical School, Harvard Medical School, and the University of Michigan.
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 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:
Dr. Sussman is a Research Scientist in the Center for Clinical Management Research at the Veterans Affairs Ann Arbor Health System and an Assistant Professor in the Department of Internal Medicine at the University of Michigan Medical School. He attended medical school at the University of California, San Francisco, completed internal medicine residency at Yale-New Haven Hospital, and was a Robert Wood Johnson Foundation Clinical Scholar at the University of Michigan.
Consider this scenario:
Alfred woke up at 4 am on Sunday morning with pain in his left foot. That place where his new running shoes had rubbed a raw spot earlier in the week was getting worse. By 9 am, the foot was red and swollen, with a large oozing sore, and Alfred decided to go to the Emergency Room at his local hospital.
Late on Sunday afternoon, Alfred returned home from the ER. He crutched his way into the house and collapsed on the sofa. His teenage son quizzed him.
How do your answers compare?
- Emergency care that was given
- Post-ER care needs
- Symptoms that would require a return to the ER