H. Myra Kim is a Research Scientist at the Center for Statistical Consultation and Research and and Adjunct Professor at the Department of Biostatistics. She received her Sc.D. in Biostatistics from Harvard University in 1995 and worked at Brown University as an Assistant Professor from 1995 to 1997. She has worked at UM since 1997 and has collaborated with various researchers from around the UM community as well as from other universities.
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Timothy R. B. Johnson, M.D. served as Chair of Obstetrics and Gynecology at the University of Michigan from 1993-2017. He is Bates Professor of the Diseases of Women and Children; and also Arthur F. Thurnau Professor; Professor, Women’s Studies, and Research Professor, Center for Human Growth and Development. His education and training have been at the University of Michigan, University of Virginia and Johns Hopkins.
Last Saturday, Dr. Susan Goold had the highly esteemed task of presenting to the AMA House of Delegates on modernizing the Code of Medical Ethics. As the chair of the AMA Committee on Ethical and Judicial Affairs (CEJA), Dr. Goold is very involved in this massive reformatting and modernization effort. More information can be found in the AMA Wire press release.
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:
Along with Ted A. Skolarus, M.D., M.P.H., CBSSM Co-Director, Angela Fagerlin authored a Viewpoint article titled "Rethinking Patient-Physician Communication of Biopsy Results -- The Waiting Game." In the article, they conclude, "Telemedicine approaches can potentially relieve much of the anxiety associated with in-person consultations while delivering bad news in a timely, compassionate, and patient-centered manner."
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.
"Engaging communities in deliberations about priorities for Medicaid, Community Health Benefits, and Essential Health Benefits"
Presented by Susan Goold
Topic: ICU tracheostomy decisions the lens of professor Yates’ 10 cardinal issues in good decision making that is well respected in non-medical settings