 I'm our final speaker for the first panel, Professor Anup Malani, who's the Lina, I'm sorry, the Lee and Brenna Freeman Professor at the University of Chicago Law School and also Professor at the Pritzker School of Medicine. Anup has a PhD in economics and a JD both from the University of Chicago. He clerked for Judge Stephen Williams on the U.S. Court of Appeals and later for Sandra Day O'Connor on the Supreme Court. Anup does research in law and economics and in health economics. His health economics research focuses on the value of medical innovation and the value of insurance, control of infectious diseases, the placebo effect. He's the principal investigator on an Indian health insurance experiment involving 12,000 households to study whether health insurance brings benefits to people's health. That study is being conducted in Karnataka, India. Today Anup Malani will speak to us on the topic, which I'm looking forward to hearing, an economic analysis of medical ethics. Anup. Thank you Mark for that warm introduction. Thank you all for attending this talk. What I want to do here is begin a conversation between economists and ethicists about medical ethics and the relationship between economics and medical ethics. In particular, we want to do, and this is joint work with Tom Phillips and Richard Posner and being a bunch of economists at the University of Chicago, we want to begin this conversation by being slightly obnoxious. So bear with me as I do that. It's not that we're all mean people, but we want to make a bold claim in order to spark a conversation, as is our way here at the University, especially in economics. So I want to offer you three propositions. The first one is that medical ethics can be understood as part of the economic framework for normative analysis, what we call welfare economics. And so we can think of a lot of what we do in medical ethics as really just components of what we do in welfare economics. A second thing is that we think that putting it in this framework has the added benefit that it clarifies a lot of debates in bioethics and especially fissures in those debates. And the third thing is a positive benefit. I think what we can do by applying a welfare economics framework to medical ethics is understand or distinguish which ethical controversies or ethical claims are more controversial and less controversial. And also, and I think this is the part of the talk that I think will be the most challenging is to try to understand the market for medical ethics. So it's the market for people who practice bioethics, whether it's medical ethics for treatment or medical ethics for research. So let me begin. Now a lot of what I'm going to say is not going to be super controversial. It'll seem pretty obvious, but the idea is to warm you up to some of the sorts of discussions we have in economics. So here are some examples or ways where we can translate the language that's used in bioethics, things like autonomy, beneficence, maleficence, justice, things like that, into language that's used by economists and that plug into our normative framework. So as you know, the normative framework that's going to be for economists is a lot like basically a basic utilitarian, inconsequentialist utilitarian framework, but there's a lot of fleshing out that gets done through positive economics. So let's start out with the doctor-patient relationship. When economists look at the doctor-patient relationship, they view this as basically a principal agent problem. What I mean by this is that there are some parties in this transaction that have more information than other parties in the transaction are getting and the less informed they're trying to get, the more informed to behave better, to behave in their interest. Typically view this as the doctor having a lot of information and the patient not having a lot of information. The doctor is the agent, the patient is the principal and the patient is trying to get the doctor to do the right thing. And that's not entirely true. This turns out there's kind of a two-sided asymmetric information problem here because it's also the case the patient has a lot more information than the doctor does about the patient's own preferences and that's preferences not only over health but also of consumption. And so we have you know something that when we think about things like informed consent which most of you will think about as flowing from principal of autonomy or many of you will think about as flowing from principal autonomy. We economists just say well what's really going on here is there's information the physician has about the risk associated with treatment information asymmetry. We want to get the physician to disclose that information to the patient so that the patient can make an informed decision, make a better decision and be more precise take advantage of her own private information about preferences. One of the reasons why it's important to think that this is two-sided information asymmetry is that it's also possible that instead of informed consent you could have the opposite which is if a patient could convey her information about preferences over health and consumption to the doctor accurately the doctor could make that decision as well. Of course we have to worry about the doctor's incentives as opposed to the patient's incentives. But again that's where informed consent fits in autonomy relates to addressing the information asymmetry problem between doctors and patients. Another example and there are many more examples but I'm just going to give a few other examples. So the first you know as I said the first principle is principal agent problem that's a very many ethics controversy can be thought of as just variations of the principal agent problem. Another area of economics that can explain controversies in bioethics or issues in bioethics is the idea of inter temporal allocation of consumption. This is allocation of consumption across people over time and so the best example this I think this explains a lot of research ethics. So why is that the case? Think about what research is. So particularly I like to think of the context of clinical trials and what and medical studies and that involve patients and often what this is is research is the production of information that's about medical treatment that's a value not only to the current patients but also to future patients but interestingly only current patients can participate. Unborn and I don't mean by this you know unborn children or fetuses I mean just future generations cannot participate in current research but they benefit from current research and so the the way that we conduct research really affects what future generations get relative to current generations and so when we have ethical rules and I know that this might be changed a little bit but when we have rules that limit research such as requirements of equipos or limits on wages that you play research subjects what we're really doing is placing limits on the transfers that current consumers can make to future consumers and by the way this is two way transfers because when you pay current consumers to participate in research even in the absence of equipos you're just paying them with money that you later expect to get drug companies expect to get from future consumers and so it's just facilitating a trade but bioethics takes position on this very often and tries to limit or regulate those trades okay so it's regulating the inter-temporal allocation of consumption. A third topic within economics that can explain or describe a lot of ethical controversies the idea of interdependent utility more simply speaking we think about altruism I may care about the welfare of my children that's altruism a doctor may care about the welfare the utility of patients interestingly it's not just doctors that have that preference by ethicists ethicists can also have that preference and often it's kind of strange to think about an ethicist having a preference obviously we just ethicists stand outside and observe what other people want or making judgments but no no they're not because they're making a preference over what other people expressing a preference over what they think other people should have or do want and so I don't deny that ethicists just like practicing ethicists just like practicing doctors may have altruistic preferences but they may not have preferences over exactly what we think they ought to have or you know they they pick a particular type of preference and I think the one that strikes me as most interesting is that ethicists often have a preference for health rather than utility whereas their subjects whether it be doctors or more importantly patients have preferences over both health and consumption and so economists always think about health consumption trade-offs people are willing to sacrifice health in order to get more consumption by the way that relates to the discussion that we just had about rationing but ethicists are not all ethicists but many ethicists that assert the primacy of health and not want to make sacrifices on health are basically expressing their altruistic preferences over other people's health but the important thing to realize is that they're expressing they have altruism over other people's health and not utility doesn't make it right it's just their particular preference but once you understand it that way I think it economics can can can can encourage a sort of humility in claims in bioethical claims about how much we should invest in health and what sort of health decisions do I make? The last one that I want to talk about relates to interdependent utility but is one step further removed and it's the idea that when you create a social welfare function you have to assign people weights we call them welfare weights or lambda weights and you know utilitarian typically will put equal welfare weights on everybody that's why it's called utilitarian rather than just additive utility and this is very much related to ideas like justice that you find simply described in in in a lot of bioethics conversations and then there are implications that flow from justice but that we understood it's just implications that flow from a choice made about what sort of welfare allocations you want so for example to be more country you know we think about trying to have more egalitarian allocations of human organs we don't by the way interestingly we don't do this necessary for blood but we do this for for certain other bodily parts such as organs and so we implement rules like first in first first out or variations of that to get allocations of organs we try to limit the market trades in organs for money but but again this is important for people realize this is an argument about equal equal welfare allocations or equal allocation of welfare weights across individuals it's not exactly right but it helps us understand why how it relates to economics and and how economics has addressed that problem in other areas and why that can be helpful in ethics okay so now why is it that we would why do we want to have this conversation first is we're just academically interested people right you want to talk to people from other disciplines to see how they see a similar problem maybe you can learn from that and so that and we do the exact same thing so I think it's important for for ethicists and economists medical ethicists and healthcare economists to talk I'm here obviously we can learn from from we economists can learn from ethicists but we want to talk a little bit about what economics can help how economics or the economics remarks that are proposing can help bioethicists and I think that they can do two things first is and I use this often when I teach classes even when I do law and economics and talk about legal ethics I hear it same thing with health economic health economics and healthcare ethics I think that what an economics framework can do is highlight tensions or inconsistencies between ethical positions that people often hold simultaneously so for example I would say a modal view is that ethicists believe relative to economists for sure that that that health is more important but you know when they're doing that they're making an argument about as I said before they're basically expressing their own ethicists are expressing their own altruistic preferences over other people's health and they think that people ought to defer to that to their altruistic preferences but then when you shift the frame just a little bit they're not willing to defer completely to altruism so for example if a doctor says I don't want to engage in informed consent because I know what's best for my patient ethicists will also resist that even though the doctor basically says I'm altruistic and I know what's best for my patient right so it's okay for an ethicist to express that position but it's not okay for a doctor to express it and ethicists exercising that belief will will will will argue against the doctor's position and that's a little bit attention another example is this idea of equal welfare weights so for example I pointed out how organ allocations events a preference for equal welfare weights across consumers everybody should have access to organs so we might like for example a first in first out system but at the same time ethicists make strong preferences for current patients over future patients when they put limitations on research and what you can allow how much you can pay research subjects whether or not they can enter trials where they're they're going to get something that they know or that we know might be bad for them but so that's inconsistent right because why wouldn't we weight the future patients as much as current patients obviously in each of these situations ethicists can come back and say oh well that's different because or this is different because but it requires that extra line of argumentation it's not a simple principle the simplest principle generates some sort of tension across these different views and again these are just examples there are others that we can come up with where the economics framework highlights inconsistencies or tensions another thing that I think is helpful is that and this is kind of moving away from normative to a little bit more positive but I think the economics framework can help us understand why certain ethical principles are more controversial or disobeyed than others and make predictions about this so for example a really simple one with respect to informed consent is I would expect that doctors who have the benefit of fee for service insurance or getting a cost plus reimbursement are much more likely to over treat and because they're much more likely to over treat are much more likely to hide or not disclose side effects to patients because that allows them to treat or get more payment but those are precisely the folks that are going to be the ones that are most likely to disagree with informed consent or put pressure on informed consent principles right because they want to not tell people that the treatment might be bad because they have an economic incentive to actually over treat so that's you know I expect to see more informed consent controversies when we have a fee for service system then we don't have a fee for service system such as cavitation another example is in I think this is an inconsistency or controversy so in general and I'd say still the modal position for reimbursement ethical position on the reimbursement of research subjects is you're not allowed to pay wages you know you can pay for their expenses but you're allowed allowed to pay wages of research subjects participate in trials we don't pay them for taking risk now obviously I could sit here and say well that's really you know I don't understand that we often pay for people out in the real world to take risks we pay construction workers more janitors that work in nuclear power plants more things like that we pay for health risks in fact that's how we estimate the value of statistical life is that people have made that choice but get compensated for it but it also happens even within the realm of medical research which highlights the inconsistency and why it's it's it's problematic so for example for phase one trials we try to enroll relatively healthy subjects right and we allow meaningful payments and and we relax the rules there and I think one of the reasons why we do that is because it's very hard to recruit healthy people into trials unless you paid them some money and you are you need them to take on the risk to figure out what the toxicology is of treatments and so that's another example of situations where there's an ethical rule but we'll disobey it because it's convenient for us to or because very hard to comply with the ethical rule we wouldn't get the research otherwise another example is assisted suicide right so assisted suicide is controversial although not allowing not assisting with suicide is consistent with maleficence this is the one situation where a patient the patient population generally is in favor of the principle of maleficence which is to say avoid harming patients but this is one situation where they actually want you to harm them they actually want to perhaps some want to end their own lives because of for example pain and suffering their experiencing because of the sickness and again the reason is because the population that the maleficence principle is supposed to benefit actually in that case is not being benefited so there is no gain in some sense from complying with the principle that's what becomes controversial now let me get to the what I think would be the if I were sitting in your seat the the most obnoxious thing that I'm going to say maybe there's a lot already but but this is the one and and this is kind of a puzzle and I think that that I'll express it in a way that's that's not entirely friendly but I think that it gets at a deep problem that I think ethicists ought to care about so when an economist looks at the market for medical ethics that is to say the market for people who provide ethical advice medical ethical advice we notice two things first is the prices paid for medical ethics advice is very low ordinarily when we see a market with really low prices we think hey there should be a lot of demand right prices fall demand rose but you don't see that you see also low quantity and that's a puzzle why isn't that we see low prices and low quantity in fact this is by the way that one of the reasons why we actually took on this topic is we just saw this interesting point where people weren't paid you don't have to pay for ethical advice very much you don't seek it out by the way it's not unique to medical ethics legal ethics has the same problem which raises the broader principle question for ethics but but this is a context where you know it's really interesting that you know a doctor providing medical treatment gets paid but an ethicist providing ethical guidance about that treatment does not get paid very much and so so here's some some some interesting facts that that that kind of validate this or express these this this basic point which is you know hospitals again we've only looked at secondary research on this hospitals often are offer ethics consultants for free they pay them with the salary but but they're not utilized a great deal utilization of of ethical ethics consults is quite low quantitatively even though it's free also interesting the insurance companies are not paying for ethics consults at least far as I know very much or very frequently that's on the treatment ethics side but if you look at the research ethics side same sort of thing it's not like researchers and potential subjects are the ones that are paying for ethics consults what's going on is basically the the government has imposed IRBs on research institutions by regulation by threatening the withholding of grant funding if you don't do that and and and universities and other research institutions often comply sometimes go beyond what the government requires because of fear of of consequences regulatory consequences so that's an interesting thing it is government led demand not not private demand again consistent with this idea of low prices and low quantity um and you see other facts also supporting this so for you know you look at medical uh board exams a very small percentage of them are about ethics and if ethics were important that would seem to for treatment and treatment decisions you would think that they would be more that would be more common um you see AMAs uh uh code of medical ethics is very short it's rarely enforced that contrast for example with medical malpractice liability but why is this the case and now here's I want to I want to say two things that I think are are again I apologize ahead of time these these are a little bit more aggressive uh but for the purpose of of of uh generating conversation one is that I wonder we wonder if treatment ethics are not actually binding uh we we wonder that that when treatment ethics promote efficiency they're not binding people would engage in them anyway and so we don't need the ethics controversies okay um it it's it's it's when ethics is not uh uh efficiently efficiency promoting that it's most necessary but that's why we see very little demand for it because it's not efficiency promoting um and so that's that's the that's the first claim I hope that makes sense which is if this is just about efficiency it would happen people do the do the ethical thing even without the ethics consult because it's efficiency promoting you don't need ethics ethics not doing a lot of work there ethics is doing a lot of work when things are not efficient as between two parties and in that context the two parties don't want it and you have to impose it from outside but then you have to ask why you're imposing it from outside the second thing I would say uh is uh for that that works with treat that explains treatment ethics perhaps perhaps but research ethics a little bit different um well our position is that if if we allowed for a full market uh for research subjects for example to allow payment of wages for research subjects uh you would have uh obviously patients coming in taking risks um uh to generate information and getting paid for it but uh and and and that would be fine that's just like you know a janitor working in a nuclear power plant the problem is that when ethics rules uh limit that payment right they collapse that market and so then it has to intervene again to re-regulate that market and that's where challenges emerge so uh it's it's it's it's almost as if what research ethics is doing is creating a problem and then trying to fix the problem that it's created and economics would say we why not just allow wages uh and that's how things work in other markets we don't have the ethics of construction uh the ethics of the construction industry we don't have the ethics of uh you know interesting the car if you're thinking about asymmetric we don't have ethics of the auto industry but we do do it for uh medicine we do do it to some extent for law uh and it partly could be because of of regulations uh that limit the market itself so let me stop there actually I stopped halfway apparently in the middle of that sentence um what it meant to say is research ethics matters because it limits that market okay let me start stop there and then and then uh take if we have time take some questions any questions for Professor Malani's controversial arguments Tracy so as both the ethics consultation director and the vice chair of the irb oops uh I'm going to just go ahead and duck so I actually think ethics consults is the wrong way to look at it most institutions not the University of Chicago but most institutions are going to putting ethics under quality and ethics they are hiring full-time ethicists that are fundamentally working on lots of things beyond the consult and the consult is sort of the step of there's nothing else working but setting up policies doing daily rounding and I think that they are investing in ethics and then from an IRB standpoint number one we are paying research subjects we're paying research subjects to take care of to do drug studies there's lots of drug studies we're not paying research subjects but there's lots that we are and even though yes it seems very regulatory we've had at least two consumer support groups two consumer groups that have come after protocols that fundamentally many of us in this room have argued about including a support study as well as there's also one in New York about from an endocrinologist on CAH research that they were they thought that despite regulation it was done unethically so I think we have to have some regulation to prevent things becoming completely unethical and we can all argue over those two if those two cases were actually unethical or not but fundamentally there are groups that fundamentally want research regulated in addition to other groups that want research unregulated and I think we have to maintain some degree of regulation and the new common rule will probably decrease the level of regulation nationally thanks so I don't think that I wouldn't say that we don't pay research subjects we just pay them very little so we compensate them for their time we compensate for medical expenses but we don't pay them wages like I get paid for example to teach so we don't see patients being paid a hundred thousand dollars or hundred twenty thousand dollars to engage in clinical trials even if the benefit to the research to the to the drug company would be great to in terms of being able to finish the trial more quickly and in fact one of the reasons why at least we would conjecture why it is the patients groups worry about the the ethics of trials is because when you're making the payment very low not zero but a small amount below market wages you are imposing risk that's not fully compensated and so the the consumer groups the patient groups are going to fight against that and our conjecture would be if you paid a higher wage they would not fight as much so we another way to think about this is imagine if instead we allowed research subjects to unionize what would they do well they would probably allow the research trials to continue but would want a really high wage and that would be fine by us and I think that that I mean I guess economists would say that even that would be better than just trying to artificially put caps on the wages again wages are not zero but they're not market wages if they're free market. This is the last question from Fark. Fark Erlen how would your analysis change if the the the framework that you think gives rise to ethics is not one of of unequal information and a need for information transactions but an acute and profound sort of human vulnerability that gives rise to a profession like law a profession like medicine not so much to the car industry a vulnerability in the case of sickness or in being accused by the state of some kind of crime in which you need a helper who you can't form a written contract for the kind of help you need with from them and you're not in a position to enforce that contract because of the vulnerability you're in so it seems it seems to me the reason you have legal ethics and medical ethics and you don't have auto manufacturing ethics is because of a very different sorts of human vulnerabilities to give rise to those professions. So I guess I would want to ask what what you mean by vulnerability I want to unpack that because does it mean that they as I was asserting they have less information is it because they're poor is it because they don't have the mental capacity no it's because they're sick it's because they're sick but but lots of people are very sick and have mental capacity and can be great great advocates for themselves why is it that we think as a class people with sickness well because well I guess I mean this might be something that's easier seen inside the practice but when someone is sick and all the action activities that go into your care of them can't or cannot be structured by uh what is my contract what are you paying for they have they require judgment they require a lot of action when the other person when the person cannot make innocent and can't consider all the options it just seems like they don't work like the sort of transaction which you consider the car to buy or something. So I don't think it has to do with the contract very few transactions I engage in are about contract it's just making an arrangement or a deal or an agreement often verbal and I do lots of it I guess where I would poke at this is I'd say I'd want you to be very precise about what you mean about vulnerability because what ends up happening is two problems first is that vulnerable patient there are classes of people that are not vulnerable that we also treat as vulnerable and then don't treat so for example a very competent prison prisoner could participate in that clinical trial involving prisoners not all prisoners are vulnerable I think we expand that category beyond what it really needs to for example the prisoner one another example is that we allow that vulnerable patient to make not to make decisions about health care but we allow that same person who's very vulnerable because of the sickness to make decisions about a ton of other things and we respect those decisions and so it seems like we're inconsistent even when they truly are vulnerable we're we only will care about them when they're making health care decisions which seems inconsistent and I think that what that broadly means is that I think that we need to be a little bit more precise about what we mean by vulnerability and once we do that then again we can fit it in within a framework and devise more precise I believe those people need to be helped but we need to help them in a way that's most effective thank you