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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.

Thu, November 09, 2017

Kayte Spector-Bagdady was recently quoted for The State Journal-Register article on the investigation of Southern Illinois University researcher, William Halford's genital herpes vaccine research.

Research Topics: 
Sun, November 14, 2010

Raymond De Vries, Professor in the Center for Bioethics and Social Sciences in Medicine and the Departments of Medical Education and Obstetrics and Gynecology, authored a commentary in a Dutch national newspaper examining media misrepresentation of a recent article in the British Medical Journal about perinatal death in the Netherlands.  Dr. De Vries and colleague Lisa Kane Low, Director of Midwifery Education, will present at a conference, Knowledge in Business, sponsored by the Zuyd University in Maastricht.

CBSSM Faculty, Brian Zikmund-Fisher, Tanner Caverly, and Jeffrey Kullgren were co-authors on a study published in JAMA Internal Medicine Article on Why Doctors Order Unnecessary Scans for Back Pain. Erika Sears, MD, MS was the lead author.

The study was highlighted in UMHS news release here.

Research Topics: 

Lisa Szymecko, JD, PhD

Alumni

Lisa Szymecko joined CBSSM in May 2012 as a Research Area Specialist Intermediate, working as the study coordinator for Susan Goold on the DECIDERS and PCORI projects.


Lisa earned her Bachelors of Science degree in Chemical Engineering from Michigan Technological University, her Juris Doctorate from Detroit College of Law, and her PhD in Resource Development from Michigan State University.

Last Name: 
Syzmecko

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.

We are announcing available positions for faculty ethicists in our Clinical Ethics Service. This service is hosted by CBSSM and provides the resources to expand and improve existing clinical ethics services across the institution.

Andrew Shuman, MD and Christian Vercler, MD are the Co-Directors/Leads of the Clinical Ethcs Service.

The detailed descriptions of the open positions can be found below. Application submission deadline is September 25, 2017, with a starting date of January 1, 2018.

Faculty Ethicist Positions

 

 

 

 

Does order matter when distributing resources? (Jun-03)

Should people with more severe health problems receive state funding for treatment before people with less severe health problems? See how your opinion compares with the opinions of others.

Imagine that you are a government official responsible for deciding how state money is spent on different medical treatments. Your budget is limited so you cannot afford to offer treatment to everyone who might benefit. Right now, you must choose to spend money on one of two treatments.

  • Treatment A treats a life threatening illness. It saves patients' lives and returns them to perfect health after treatment
  • Treatment B treats a different life threatening illness. It saves patients' lives but is not entirely effective and leaves them with paraplegia after treatment. These patients are entirely normal before their illness but after treatment will have paraplegia.

Suppose the state has enough money to offer Treatment A to 100 patients. How many patients would have to offered Treatment B so that you would have difficulty choosing which treatment to offer?

How do your answers compare?

The average person said that it would become difficult to decide which treatment to offer when 1000 people were offered Treatment B.

What if you had made another comparison before the one you just made?

In the study, some people were asked to make a comparison between saving the lives of otherwise-healthy people and saving the lives of people who already had paraplegia. After they made that comparison, they made the comparison you just completed. The average person in that group said it would take 126 people offered Treatment B to make the decision difficult. The differences are shown in the graph below

Why is this important?

The comparison you made is an example of a person tradeoff (PTO). The PTO is one method used to find out the utilities of different health conditions. These utilities are basically measures of the severities of the conditions. More severe conditions have a lower utility, and less severe conditions have a higher utility, on a scale of 0 to 1. Insurance companies, the government, and other organizations use these utilities as a way to decide which group to funnel money into for treatments.

On the surface, it seems like basing the money division on the severity of a condition is a good and fair method, since theoretically the people who are in the greatest need will be treated first. However, the PTO raises issues of fairness and equity that aren't accounted for in other utility elicitation methods like the time tradeoff (TTO) and rating scale (RS).

For example, when asked to decide how many people with paraplegia would have to be saved to equal saving 100 healthy people, many people say 100; that is, they think it is equally important to save the life of someone with paraplegia and a healthy person. Going by values obtained using the TTO or RS, an insurance company may conclude that 160 people with paraplegia (using a utility of .6) would have to be saved to make it equal to saving 100 healthy people. This would mean that less benefit would be gotten by saving someone with paraplegia, and thus they might not cover expenses for lifesaving treatments for people with paraplegia as much as they would for a healthy person. The PTO shows that many people would not agree with doing this, even though their own responses to other utility questions generated the policy in the first place.

For more information see:

Ubel PA, Richardson J, Baron J. Exploring the role of order effects in person trade-off elicitations. Health Policy, 61(2):189-199, 2002.

Is Bill Gates' time worth more than yours? (Jul-03)

Informal caregiving for relatives (parents, grandparents, spouses) can be time consuming. Can we attach dollar value to that time? Is everyone's time worth the same amount?

Imagine that your mother is suffering from moderate dementia and needs assistance with daily activities such as bathing and dressing. You are the only person available to care for her, as you are an only child and your father has passed away. On average, your mother will need about 2 to 3 hours of help per day, or 17 hours per week total.

Assuming that you provide 17 hours of care per week, that means you will provide about 900 hours of care each year. How much money would you say the time you devote to caregiving is worth each year?
 
Now imagine that Bill Gates, the world's richest person, is in the same situation as you. He has to provide 17 hours of care per week to his mother. How do you think the value of the time he spends giving care compares to the value of the time you spend giving care?
 
  • His is worth more
  • His is worth the same amount
  • His is worth less

How do your answers compare?

According to a study done to determine the costs of informal caregiving, the average value of the time spent giving care to someone with moderate dementia was about $7400. This was calculated using an average time of about 900 hours per year, at the mean wage for a home health aide in 1998 of $8.20 per hour.

What if the person you're caring for has less or more severe dementia?

As you might imagine, the cost of informal care differs depending on the severity of dementia. People with mild dementia don't need as much care (8.5 hours per week), and those with severe dementia need much more (41.5 hours per week). The amount of care needed directly impacts the estimated cost of care:

Dementia severity Hours of care per week Estimated cost of informal care
Mild 8.5 $3630
Moderate 17.4 $7420
Severe 41.5 $17,700
Why is this important?

As the Baby Boomer generation ages, the number of people needing informal care is going to increase dramatically. In order to make informed policy decisions regarding care for older people, the government will need an estimate of the value of informal care. A major obstacle to this is that there is no set way for making the estimates.

Earlier, you said that Bill Gate's caregiving time would be worth the same amount as yours. That implies that basing national estimates of caregiving costs on average wages would be the proper way to go about the calculations, since it means everyone's time is equally valuable.

However, some people think that not everyone's time is of equal value. In that case, using average wages to estimate the total cost of caregiving may not lead to an accurate representation. If one group of people is more likely to provide care than another group, then the average value of all caregivers' time may not be the same as the average of all peoples' time. This would possibly lead to an over- or underestimation of caregiving costs, depending on the value of the time of common groups of caregivers. Even without an agreed-upon estimation method, some valuable data can be generated.

The estimation method used in this study likely led to conservative figures, so the true costs of informal caregiving are probably higher than reported here. Even using this conservative method, the costs to society are staggering. The researchers estimated that the cost of informal caregiving for dementia alone in 1998 was $18.6 billion, which is almost two-thirds as much money as that actually spent on paid home care services for all conditions, not just dementia! That figure will grow considerably in the not-so-distant future when the Baby Boomers begin to need caregiving, whether formal or informal, and will likely have a large impact not just on health care systems, but on society as a whole as more and more people are called on to provide informal care.

For more information see:

Langa KM, et al. National estimates of the quantity and cost of informal caregiving for the elderly with dementia. Journal of General Internal Medicine. 16:770-778, 2001.

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.

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