Cyrus Dugger

Unequal Justice: The Hidden Gendered Impact of “Tort Reform”

A revelaing excerpt from Unequal Justice: The Hidden Gendered Impact of “Tort Reform”

High on the corporate “tort reform” agenda is a limit or cap on non-economic damages. As opposed to economic damages, which compensate injured parties for out-of-pocket expenses such as loss of income and medical bills, non-economic damages compensate plaintiffs for injuries that are difficult to quantify in market value though they may be just as damaging. Examples of non-economic damages include physical and emotional suffering, physical impairment, infertility and injury to reputation. Sexualized injuries from sexual assault or rape and gynecological malpractice injuries related to reproductive health such as infertility, injury to the breasts and the reproductive system are all considered non-economic damages.

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Many states have already enacted caps on some or all non-economic damages. The Congress is expected to consider later this year a medical malpractice bill that would limit non-economic damages in medical malpractice cases to $250,000.

But such limits do not fall equally on men and women, stress women’s groups. Since men generally earn more than women, they are likely to receive higher compensation in economic damages for the same injury. In determining future wage losses from an injury and thus the amount of economic compensation, juries and judges use wage projection data that rely on a person’s earning history. Women, the poor, the elderly, minorities and children receive less or no economic compensation because they typically earn less than white male adults. Moreover, women who work within the home and do not bring home pay like Sherry Keller do not have the right to collect for economic damages from loss of income if injured by medical malpractice or a faulty product. They are thus more likely to rely on compensation from non-economic damages to recover from or at least mitigate their losses.

Proponents of medical malpractice caps say women can be adequately compensated even with the limits on non-economic damages. Setting a cap on non-economic damages is not really an issue for women, says a representative from the American Medical Association, because all of their economic damages are paid and they also can collect the quarter million dollars.

An arbitrary limit of $250,000, however, is not adequate compensation in many cases, charge opponents of caps. No amount of money can take away a person’s loss, but it can give them back their dignity and make their lives more comfortable after an injury, says Geoff Boehm, legal director of the New York City-based Center for Justice & Democracy. But to do so requires more than $250,000 in many cases. A wheelchair alone costs around $50,000.

Compounding the problem, say women’s health advocates, is the targeting of obstetric/gynecological injuries for limits on non-economic damages. The Healthy Mothers and Healthy Babies Access to Care Act introduced last year by lead tort reformer Senator John Ensign, R-Nevada, called for a $250,000 non-economic damage cap for medical malpractice settlements involving pregnancy, delivery, and other obstetrical and gynecological care.

This bill clearly discriminates against women and children by regulating only obstetrical and gynecological practices, says Kim Gandy, president of the National Organization of Women (NOW). Why should women be restricted in seeking fair compensation after being harmed while men retain their full legal protections? (link)

Posted at 12:30 PM, Jan 23, 2007 in Permalink | Comments (2) | TrackBack (0)