Defining Compensable Injury in Biomedical Research

Biomedical research provides a core social good by enabling medical progress. In the twenty-first century alone, this includes reducing transmission of HIV/AIDS, developing innovative therapies for cancer patients, and exploring the possibilities of personalized medicine. In order to continue to advance medical science, research relies on the voluntary participation of human subjects. Because research is inherently uncertain, unintended harm is an inevitable part of the research enterprise. Currently, injured research participants in the United States must turn to the “litigation lottery” of the tort system in search of compensation. This state of affairs fails research participants, who are too often left uncompensated for devastating losses, and makes the United States an outlier in the international community. In spite of forty years’ worth of Presidential Commissions and other respected voices calling for the development of a no-fault compensation system, no progress has been made to date. One of the reasons for this lack of progress is the failure to develop a coherent ethical basis for an obligation to provide compensation for research related injuries. This problem is exacerbated by the lack of a clear definition of “compensable injury” in the biomedical research context. This article makes a number of important contributions to the scholarship in this growing field. To begin, it examines compensation systems already in existence and concludes that there are four main definitional elements that must be used to define “compensable injury.” Next, it examines the justifications that have been put forth as the basis for an ethical obligation to provide compensation, and settles on retrospective nonmaleficence and distributive and compensatory justice as the most salient and persuasive. Finally, it uses the regulatory elements and the justifications discussed in the first two sections to develop a well-rounded definition of “compensable injury” that is tailored to the biomedical research context. Using this definition, it argues for the development of a first-of- its-kind no-fault compensation system in the United States.