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)
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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.
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:
The Bishop Lectureship in Bioethics
Together with the Bishop endowment, CBSSM sponsors the Bishop Lecture in Bioethics. The Bishop Lecture in Bioethics was made possible by a generous gift from the estate of Ronald and Nancy Bishop, both graduates of the University of Michigan Medical School (Class of ‘44). The Bishop lecture typically serves as the keynote address for the CBSSM Research Colloquium. The Bishop Lecture selection committee is headed by Susan Goold, MD, MHSA, MA. Click here for more details.
CBSSM Research Colloquium
The Center for Bioethics and Social Sciences in Medicine (CBSSM) Research Colloquium features presentations focusing on bioethics and social sciences in medicine across multiple disciplines. Click here for more details.
CBSSM Seminar Series
Building upon the very successful “joint seminars” of past years sponsored by the Bioethics Program and the Center for Behavioral and Decision Sciences in Medicine (CBDSM), CBSSM hosts seminars on a bimonthly basis throughout the academic year, inviting investigators to present both developing and finished research topics. Click here for more details.
In addition to the Bishop Lecture in Bioethics, CBSSM has sponsored and co-sponsored a number of other events.
With support from the UMHS Office of Clinical Affairs and C.S. Mott Children’s Hospital and Von Voigtlander Women’s Hospital, CBSSM’s Program in Clinical Ethics sponsors the monthly Bioethics Grand Rounds, focusing on ethical issues arising in health care and medicine. This educational session is open to UMHS faculty and staff.
Film Screening & Moderated Discussion
CBSSM also sponsors film screenings and moderated panel discussions. In 2017, CBSSM sponsored a free film screening of "Concussion." The moderated panel included Ellen Arruda, PhD, Mechanical Engineering; Karen Kelly-Blake, PhD, Bioethics, MSU; & Matthew Lorincz, MD, PhD, Neurology. The moderator was Raymond De Vries, PhD.
In 2015, CBSSM co-sponsored a free film screening of "Still Alice." The panel included Nancy Barbas, MD and J. Scott Roberts, PHD and the moderator was Raymond De Vries, PhD. The event was co-sponsored by the Michigan Alzheimer's Disease Center.
Current Event Panels
In 2014, CBSSM co-sponsored the panel "Incidental Findings in Clinical Exome and Genome Sequencing: The Drama and the Data" featuring Robert C. Green, MD, MPH, Associate Professor of Medicine, Division of Genetics at Brigham and Women’s Hospital and Harvard Medical School, as the keynote speaker. The panel included Jeffrey W. Innis, MD, PhD, Morton S. and Henrietta K. Sellner Professor in Human Genetics and Director, Division of Pediatric Genetics, and Wendy R. Uhlmann, MS, CGC, Clinical Associate Professor, Department of Internal Medicine and Department of Human Genetics. The panel was moderated by Sharon L.R. Kardia, PhD, Director, Public Health Genetics Program and the Life Sciences and Society Program, School of Public Health, University of Michigan. This event was also co-sponsored by the Department of Human Genetics, Genetic Counseling Program and Life Sciences and Society, Department of Epidemiology.
In 2013, CBSSM sponsored the panel "What does the Supreme Court ruling on gene patents mean for public health?" The panel featured panelists, Rebecca Eisenberg, JD, Robert and Barbara Luciano Professor of Law; Sofia Merajver, MD, PhD, Professor, Department of Internal Medicine; and Shobita Parthasarathy, PhD, Associate Professor of Public Policy, Gerald R. Ford School of Public Policy. The panel was moderated by Edward Goldman, JD, Associate Professor, UM Department of ObGyn Women's Hospital and Adjunct Assistant Professor, Department of Health Management and Policy.
Each year, CBSSM sponsors one Decision Consortium speaker with a focus on health-related decision making. Decision Consortium, hosted by the Department of Psychology, is a University-wide distributed center for scholarship on decision making. Each session involves a vigorous discussion of new ideas and research on problems that have significant decision making elements. CBSSM-sponsored speakers included Kevin Volpp, MD, PhD, UPenn (2015), Karen Sepucha, PhD, Harvard (2013), and Ellen Peters, PhD, OSU (2012). In 2016, CBSSM will sponsor Lisa Schwartz, MD, MS and Steven Woloshin, MD, MS from the Dartmouth Institute.
The Waggoner Lecture
In November of 2010, CBSSM co-sponsored the 15th annual Waggoner Lecture, an annual event in honor of the late Dr. Raymond Waggoner, former chair of the Department of Psychiatry. The lecture was presented by Bernard Lo, MD, Director of the Program in Medical Ethics at the University of California-San Francisco, and was entitled, “Stem cells: Intractable ethical dilemmas or emerging agreement.”
In November 2011, CBSSM co-sponsored the Waggoner Lecture breakfast. The lecture was presented by Laura Roberts, MD, chair of the Department of Psychiatry and Behavioral Sciences at Stanford University School of Medicine, and was entitled, “Becoming a Physician: Stresses and Strengths of Physicians- in-Training.”
Deadly Medicine: Creating the Master Race
In 2012, in conjunction with Taubman Health Sciences Library and the UM Center for the History of Medicine, CBSSM co-sponsored the United States Holocaust Memorial Museum’s traveling exhibition, “Deadly Medicine: Creating the Master Race.” The exhibition illustrates how Nazi leadership enlisted people in professions traditionally charged with healing and the public good, to legitimize persecution, murder and, ultimately, genocide.
MICHR Research Education Symposium
In 2013, CBSSM co-sponsored the Michigan Institute for Clinical & Health Research (MICHR) Research Education Symposium, "Life at the Interface of Genomics and Clinical Care." The symposium included a series of talks on topics with implications for translational and clinical research. The keynote speaker was Dr. Ellen Wright Clayton, JD, MD, Rosalind E. Franklin Professor of Genetics and Health Policy; Craig-Weaver Professor of Pediatrics; Professor of Law; and Director, Center for Biomedical Ethics and Society, at Vanderbilt University. Dr. Wright Clayton’s topic was “Addressing Biomedical Ethics.”
Geoff Barnes is a cardiologist and vascular medicine specialist at the University of Michigan Health System. He completed his undergraduate degree in biomedical engineering at Washington University in St. Louis (2003) followed by medical school at the University of Michigan (2007). He then completed a residency (2010), chief residency (2011) in internal medicine, cardiology fellowship (2014) and vascular medicine fellowship (2014) at the University of Michigan. His areas of research interest include anticoagulation, venous thromboembolism, quality improvement and shared decision making.
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
Kathryn Moseley served as one of the judges at "The Big Ethical Question Slam 5" hosted by a2ethics.org. In addition, Naomi Laventhal, Michele Gornick, Christian Vercler, Lauren Smith, and Lauren Wancata served as judges at the "Michigan Highschool Ethics Bowl 2."
Thanks to all the CBSSM folks who contributed their time!
For more information about these events and other great ethics-related activites, go to a2ethics.org.
A short video about the Highschool Ethics Bowl can be found here.
I serve as Professor of Family Medicine, Director of Japanese Family Health Program, and Co-Director of the Michigan Mixed Methods Research and Scholarship Program at the University of Michigan. In addition to being a family/general doctor fluent in Japanese, I have long been interested in the influence of culture on medical decision making and ethics, and have conducted numerous health research projects, and published numerous papers in English and Japanese.