Neuroscience Meets Law in Roundtable and Panel Discussion

The Center for Health, Science and Public Policy held a panel discussion Feb. 3 on “Measured Experience: Neuroimaging, Consciousness, and the Law.” Participants discussed brain injuries, the ethics of pain and suffering, and how health insurance and rehabilitation rights might be drastically changed under the new presidential administration, among other topics.

After welcome remarks by Dean Nick Allard and Professor Karen Porter, director of the center, the event began with an overview of the issues presented by Zachary Shapiro, presidential scholar at The Hastings Center and visiting fellow in law and neuroscience at Massachusetts General Hospital Center for Law, Brain, and Behavior.

Joseph J. Fins, Professor of Medical Ethics in Neurology at Weill Cornell Medical College, explored the ethical and public policy issues that can arise when an individual suffers a brain injury and experiences disorders of consciousness, especially when new technologies made to measure consciousness get added to the mix.

“The way we treat people with disorders of consciousness has heretofore been taken as a given,” Fins said, “but now emerging knowledge makes it nimble and normatively complex, and that is something that we need to do something about.” He suggested that the segregation of individuals with brain injuries in a state of “minimal consciousness” is a civil rights issue.

Professor Adam Kolber delivered remarks on “Pain, Suffering, and the Experiential Future.” He examined the “experiential point of view” and the idea that accurately measuring pain is a subjective experience. He cited as an example insurance companies’ practice of asking medical patients to approximate their pain level on a scale of one to 10. Different individuals might objectively be experiencing the same amount of pain, but one patient might mark this as a four while the other might mark it as a seven. With this in mind, Kolber raised the legal question of how courts and juries can assign substantial financial rewards to suffering plaintiffs when the pain being measured can be so subjective.

Kolber made a similar point about measuring emotional distress, citing Allen v. Bloomfield Hills School District, a 2008 Supreme Court decision in which a train operator hit a school bus that was illegally blocking the train tracks. The train operator feared he had killed school children; however, the school bus was empty except for its driver, who was injured but alive. The train operator sued the school district, and won, for experiencing post-traumatic stress disorder.

“We don’t trust people when they say they have emotional pain,” Kolber said, “but as a matter of policy, this was probably the correct decision.”

Stacey A. Tovino, Professor of Law at UNLV William S. Boyd School of Law, discussed the health insurance and rehabilitation rights of individuals affected by disorders of the brain, including minimal consciousness.

“This is a broad rights issue, and not just a health insurance coverage issue,” Tovino said. “But we see that these questions are becoming more dire by the moment, especially on the private health insurance side as a result of what will be the likely repeal and replacement of the Affordable Care Act.”