additional burdens on the tort system. If, for example, the hedonic value of a life is calculated at $8 million and testimony shows there has been a 50 percent reduction or loss in the value of that life, the hedonic damages would be $4 million.

Assigning a dollar value to hedonic damages is widely disputed. Some experts claim to be able to calculate the value of hedonic damages while others have conducted studies that undercut the credibility of pricing hedonic damages.

Court observers believe that hedonic damages first emerged in 1987 as a theory of recovery during testimony by economist Stan V. Smith in Sherrod v. Berry, 827 F. 2d 195. A frequently cited article weighing in on the side of hedonic damages is “The Plausible Range for the Value of Life—Red Herrings Among the Mackerel” by Ted R. Miller published in the Journal of Forensic Economics in 1990. At the time, Miller put the value of life’s enjoyment at between $1.5 and $3.5 million. This figure has gone as high as $8 million in more recent years.

Testimony claiming a dollar amount of the value of life falls short of the Daubert standards for scientific evidence. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993), the Supreme Court said that the trial judge has to decide whether the evidence offered by expert testimony is based on reasoning or methodology that is scientifically valid.

Various state court discussions from 1994 to 1996 have found hedonic damages testimony severely inadequate. Courts nationwide have allowed testimony, but judges have discretion as to the testimony’s admissibility. Some states, including Arkansas, Connecticut, Georgia, Hawaii, and New Hampshire, allow recovery for hedonic damages in wrongful death cases. In Kentucky, William Gregory, who was convicted and later exonerated, won $4.5 million in hedonic damages after serving seven years in prison. A similar case in Texas paid $385,000 to an inmate of 15 years.

There is no insurance basis in the tort system for providing compensation for hedonic losses. People are usually not willing to purchase insurance for lost future pleasure of life. Nevertheless, formulas presented in court are based on the willingness-to-pay (WPT) concept. This would be the amount of money a person pays to purchase such things as smoke or carbon monoxide detectors or dead bolt locks. Somehow experts can, from this, extrapolate the value a person places on his or her life.

Hedonic damages experts are vague about how they arrive at the values they put on life, but the way they evaluate claims is clear. Most claims require a psychological evaluation to help determine the percentage of loss of enjoyment sustained. The experts look at the plaintiff’s functioning levels for social emotional and occupational pursuits, his or her ability to do daily tasks, and the ability to live without problems, to make independent choices, and to interact with others.

Recently, Quintero v. Rodgers, 543 Ariz. Adv. Rep 29, was heard by the Arizona Court of Appeals Division One. The contention was made in this case that hedonic damages survive the death of a patient. The outcome was favorable to the defense, and, so far, the Arizona Supreme Court has not accepted a review of this issue.

In legislation, hedonic damages have surfaced in connection with wrongful death acts where each type of recovery is spelled out and in tort reform bills where there is a list of what constitutes noneconomic damages (pain, inconvenience, impairment, anguish, disfigurement, and loss of enjoyment, society, or consortium).

Clearly, examples exist in medical care where services and products decrease a consumer’s total exposure to the risk of dying from a disease. But the services and the products used are still subject to malpractice liability. Hedonic damages would fit into the category of noneconomic damages. Without a cap on noneconomic damages and without a finite way to determine the value of the items listed within the category, the amount of damages requested continues to be whatever the plaintiff’s attorney can convince the jury is adequate. This amount will depend more upon the extent of injury than on whether the result was due to negligence or a less-than-expected outcome.

Federal Issues
The Office of Health Reform was established in early April by executive order from the White House. The stated purpose of the office is to coordinate the development of health reform policy and integrate the policies adopted in all departments and agencies. Nancy-Ann DeParle, President Obama’s White House health care adviser, will be the new director. DeParle served as head of the Health Care Financing Administration in the Clinton administration and has most recently been a fellow at the Institute of Politics at Harvard’s John F. Kennedy School of Government.

Congress has remained focused on the economic stimulus package. A total of $20 billion was approved for “health information technology initiatives,” but details on the implementation of these initiatives have not been released.

Increasing the number of Americans with health insurance coverage is a major element of the federal budget for 2009. The House plans to have a health care reform package ready for debate and vote by August. It is expected that the House Energy and Commerce and the Ways and Means Committees will hold public hearings prior to that time. The Senate leadership initiated individual discussions with key senators and specific interest groups to seek opinions for their version of a health care reform compromise package.

In an April letter to President Obama, the American Medical Association outlined its suggested eight goals for health reform: protecting families’ financial health, making health coverage affordable, aiming for universality, providing portable coverage, guaranteeing choice, investing in prevention and wellness, improving patient safety and quality, and maintaining long-term fiscal sustainability.

Congress has three medical liability reform proposals to consider this session. Senator John Ensign (R-NV) authored S.45, and Representative Phil Gingrey (R-GA) authored H.R.1086; both bills propose California’s model of a medical liability statute. Representative Michael Burgess (R-TX) authored H.R.1468, which would adopt the Texas model of medical liability reform. The Doctors Company supports all three measures.

On another front, the Office of Inspector General has announced that it has expanded its search for providers involved in improper agreements with device makers or drug companies. Conviction will result in removal from Medicare and Medicaid as well as criminal penalties.

State Issues
State actions are under scrutiny by The Doctors Company’s Government Relations Department. Currently we are fighting against negative bills in at least six states: California, Colorado, Nevada, Oregon, Texas, and Washington. Some positive legislation is pending in a few states. We will provide a detailed report on state bills in the next issue of The Doctor’s Advocate.