PFC Spotlight: Academic Fellow Alumnus Michael Frakes
Michael Frakes was an Academic Fellow from 2009-2011, during which time he researched deterrence and medical malpractice law, culminating in a publication in the University of Chicago Law Review. Today, Dr. Frakes is Professor of Law at Duke Law School and Faculty Research Fellow at the National Bureau of Economic Research.
When did you first become interested in health law policy, biotechnology, and bioethics?
My first exposure to research of any kind was as an undergrad at MIT. As part of their Undergraduate Research Opportunity Program (or UROP), I began providing research assistance to Professor Jonathan Gruber on various projects, including his micro-simulation model that has been instrumental over the years in comparing the costs and benefits of various alternative approaches to dealing, among other things, with uninsurance in the U.S. I became immediately hooked on empirical research in general, and on health-related research in particular. (Subsequently, I went on to do graduate work with Gruber and am now collaborating with him on various projects concerning medical malpractice and the Military Health System)
What attracted you to the Academic Fellowship program at the Petrie-Flom Center?
By the time I arrived, there was already a terrific group of people associated with the center, from the faculty involved (Founding Director Einer Elhauge, current Faculty Director I. Glenn Cohen and former co-Faculty Director Benjamin Roin) to the other fellows (e.g., Melissa Wasserman, Allison Hoffman, and Christopher Robertson), along with a notable group of center alums already. While this group was receptive to the kind of empirical and economic approach I took to my own research, they also brought valuable methodological and conceptual perspectives of their own to the Center, from which I felt that I could learn significantly. The Center afforded a number of means of benefiting from these interactions, from the daily conversations to be had in the office space at 23 Everett St., to the bi-weekly workshops to other special events that the Center organized.
What was the focus of your Academic Fellowship research, and how did Petrie-Flom community assist you in completing it?
My dissertation work at MIT was focused on exploring the relationship between physician behavior and various facets of the medical liability system. One of the studies I completed during my dissertation was meant to bring together two important literatures within health economics—i.e., the literature focusing on regional variations in medical practices and the literature focusing on physician responses to liability fears. I thought that these two might be connected due to the nature of the standard of care rules that we follow in the U.S. medical malpractice system and due to the evolution of those rules over time. Put simply, as many of us know from 1L Torts, we historically followed a locality rule in the US where physicians were expected to follow the practices customarily followed by those around them. One might think that such a rule would only help perpetuate any divergent regional pathways that we do observe in medicine. Over time states moved away from locality rules to expect that physicians follow national (or non-geographically limited customs). I hypothesized at that point that physician behavior would start to converge geographically once these shifts towards national standards occurred. I found strong responses in the hypothesized directions.
I extended this research in two important ways during my time as a fellow. First, on the empirical front itself, I worked to try and extend this research to as many clinical contexts as I could (beyond just the obstetrics context where much of my initial focus lied). More importantly though, I spent my time at the Petrie Flom Center better tying this research to more fundamental questions about deterrence and medical malpractice law. Not only did this link between locality rule abdications and regional variations in physician practices bring together these two literatures in economics, it also provides perhaps the only large-scale quasi experiment we can find to date on how physicians may respond to a change in the negligence standard itself, which is arguably the bedrock of medical malpractice law (with this particular shift in standards being quite meaningful here since the local- versus national-custom distinction is so large in light of the rampant regional disparities in practices we have observed over the years). The literature thus far had focused on remedies and damages and variations along that front. The literature was not focusing so much on the substance of liability rules. During my time as a fellow, I began to articulate what we could learn from standard-of-care reforms that we couldn’t learn from remedy-focused reforms. Those thoughts were later the subject of a piece I published in the University of Chicago Law Review (also critical to that piece was reconciling the very large responses I was observing along the negligence-standard dimension with the more muted responses scholars, including myself, were observing along the remedy dimension). I owe enormous credit to Professors Elhauge and Cohen for pushing me to think beyond my initial economics efforts and to better confront questions regarding what this research has to teach us about the medical liability system.
Near the end of my time at the Petrie Flom Center I also began to collaborate with my co-Academic Fellow Melissa Wasserman on various empirical extensions of some of her research on the United States Patent and Trademark Office and how the fee structure of the USPTO may incentivize various actions on the part of the office. This one project opened up a number of related lines of inquiry that we went on to explore in the ensuing 5+ years (and still going). As it turned out, the administrative process of obtaining patents was a highly under-studied area of law and policy—especially from an empirical perspective—and I was thrilled to play a part in exploring a number of questions in this space. This would not have been possible without my brilliant co-fellow and without the resources provided by the PFC to facilitate this initial collaboration.
What were your key takeaways from the Academic Fellowship? Have you continued to interact with the Center and/or its affiliates since completing your fellowship?
As above, I have continued my joint scholarship with my co-fellow, Melissa Wasserman, on the USPTO in the years since the fellowship. We have published 5 pieces to date (3 in law reviews and 2 in peer reviewed outsets), with more work on the way. I have also enjoyed continuing to interact with other alums at various conferences and events over the years. Each year, I help host an empirical health law conference with PFC Alum, Kathy Zeiler.
How has the Academic Fellowship influenced your career?
I consider my time at the PFC as having a huge impact on my career, from the help that I received from the faculty and fellows in shaping the path of my malpractice research, to providing me with the opportunity to start on the path of studying the US Patent Office, to providing me with valuable insights on how to bring my empirical / economics training to inform on debates within the legal community.fellowship health care finance innovation insurance medical malpractice research spotlight