Efficient Ethical Principles for Making Fatal Choices

Notre Dame Law Review Volume 96 Issue 4 Article 5 4-2021 Efficient Ethical Principles for Making Fatal Choices W. Kip Viscusi University Distinguished Professor of Law, Economics, and Management, Vanderbilt Law School Follow this and additional works at: https://scholarship.law.nd.edu/ndlr Part of the Health Law and Policy Commons Recommended Citation 96 Notre Dame L. Rev. 1461 (2021) This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized editor of NDLScholarship. For more information, please contact . \\jciprod01\productn\N\NDL\96-4\NDL405.txt unknown Seq: 1 5-APR-21 14:53 EFFICIENT ETHICAL PRINCIPLES FOR MAKING FATAL CHOICES W. Kip Viscusi* Resource allocations of all kinds inevitably encounter financial constraints, making it infeasible to make financially unbounded commitments. Such resource constraints arise in almost all health and safety risk contexts, which has led to a regulatory oversight process to ascertain whether the expected benefits of major regulations outweigh the costs. The economic approach to monetizing health and safety risks is well established and is based on the value of a statistical life (“VSL”). Government agencies use these values reflecting attitudes toward small changes in risk to monetize the largest benefit component of regulations—that dealing with mortality risks. This procedure consequently bases the benefit value on the individual’s own rate of tradeoff between risk and money and in effect creates a quasi-market approach to public policy assessment. Whereas tort liability awards are personalized to reflect the particular circumstances of the case, government policies generally rely on average valuations of mortality risk across broad worker groups. The COVID-19 pandemic has highlighted the potential role of resource constraints in the distribution of medical resources, particularly with respect to the provision of ventilators. The age-based allocation of treatment advocated by some medical ethicists violates age discrimination laws, is based on their own ethical judgments, and is divorced from consideration of private willingness-to-pay values or other possible economic efficiency criteria. A more constructive approach than the lifeboat and triage scenarios that are often discussed by medical ethicists is to consider ex ante how people would choose to provide for treatments when facing a prospective risk, making the task equivalent to that of valuing and saving statistical lives. Continued high valuations of risk reductions even by those who are old provides a rationale for more protective practices and more forward-thinking medical decisions than those advocated by some bioethicists. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. ECONOMIC VALUATION CONCEPTS . . . . . . . . . . . . . . . . . . . . . . . . . II. HETEROGENEITY OF THE VSL AND POLICY IMPACTS . . . . . . . . . . III. ETHICAL PRINCIPLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. COVID-19 VENTILATOR RATIONING, VACCINATIONS, AND MEDICAL TREATMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. TOWARD A BROADER PERSPECTIVE ON FATAL RISK DECISIONS 1462 1463 1466 1469 R 1471 1476 R © 2021 W. Kip Viscusi. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * University Distinguished Professor of Law, Economics, and Management, Vanderbilt Law School, 131 21st Ave. South, Nashville, TN 37203. . Rachel Dalafave provided superb research assistance. 1461 R R R R \\jciprod01\productn\N\NDL\96-4\NDL405.txt 1462 unknown Seq: 2 notre dame law review 5-APR-21 14:53 [vol. 96:4 INTRODUCTION The monetization of reduced risks to life and health is the linchpin of evaluation procedures to ascertain the economic desirability of interventions affecting public health.1 The function of these values and the degree of their personalization to the specific context are different than for damages in tort cases. Compensation in personal injury cases is ex post and is targeted to address what has been lost as a result of the injury, usually including the present value of the financial harm.2 To provide compensation for the specific harms, the payment amounts are tailored to the particular circumstances of the case, such as the family’s financial loss.3 Public valuations of health risks focus on reducing the risks to broad population groups, where these risks are valued ex ante.4 The valuation amounts are broadly based and generally reflect average valuations for the general population rather than being tailored to correspond to the demographic profile of the target population.5 Bioethicists’ discussions of medical rationing in the context of the COVID-19 pandemic have taken a more targeted approach, incorporating distinctions across different patient groups. However, this tailoring of the benefit assessments is not linked to people’s own preferences and has not been guided by any economic efficiency principles. Instead, recent bioethicist discussions of the proper response to the COVID-19 pandemic and related medical rationing often incorporate highly problematic ethical judgments as well as a myopic conceptualization of medical resource allocation decisions. The dominant benefit component in policy evaluations of health risks consists of the value that people attach to reducing mortality risks, or the value of a statistical life.6 Part I presents a brief summary of this benefitassessment approach as well as related measures, such as those dealing with very short life extensions. Government agencies generally use population1 See, e.g., FRANK ACKERMAN & LISA HEINZERLING, PRICELESS: ON KNOWING THE PRICE OF EVERYTHING AND THE VALUE OF NOTHING 61–62 (2004) (“[T]he value of life is easily the single most important number in the economics of health and environmental protection, frequently accounting for the great majority of the benefits in cost-benefit studies.”); OFF. OF MGMT. & BUDGET, 2015 REPORT TO CONGRESS ON THE BENEFITS AND COSTS OF FEDERAL REGULATIONS AND AGENCY COMPLIANCE WITH THE UNFUNDED MANDATES REFORM ACT 13 (2015) (“The largest benefits are associated with regulations that reduce risks to life.”). 2 W. KIP VISCUSI, PRICING LIVES: GUIDEPOSTS FOR A SAFER SOCIETY 192–94 (2018). 3 See, e.g., Eric A. Posner & Cass R. Sunstein, Dollars and Death, 72 U. CHI. L. REV. 537, 543–45 (2005). 4 See id. at 552. 5 The general procedures outlined by the U.S. Office of Management and Budget make no provision for the heterogeneity of the value of a statistical life. 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