President Bush believes a $250,000 cap on medical malpractice awards for the pain and suffering associated with doctors' errors will help curtail spiraling health-care costs.
But since he unveiled his prescription for tort reform, critics have been lining up, especially women, who say caps on jury awards will result in gender discrimination in malpractice cases and might end up keeping defective and dangerous drugs and medical devices made for women in the marketplace. Bush's proposal "is very unfair and it specifically targets women, particularly in regard to malpractice and medical devices," said Joanne Doroshow, executive director of the Center for Justice and Democracy, a national consumer group based in New York.
"There are medical products that have been made especially for women that have only been taken off the market as a result of lawsuits," she added.
As examples, Doroshow cited:
- IUDs such as the Dalkon Shield and the Copper-7, which caused injuries and infertility.
- DES, an anti-miscarriage drug that caused birth defects and cancers.
- Super-absorbent tampons that caused toxic shock syndrome, which resulted in deaths and disabilities.
- Silicone breast implants that ruptured and leaked, leading to life-threatening injuries.
The situation is much the same in the area of medical malpractice, critics say. In those cases, victims generally sue to obtain compensation for economic losses, meaning lost wages, current or future, and non-economic losses, meaning the pain and suffering incurred during and after the experience.
Linda McDougal, who made the rounds of the morning television news shows last week, is a case in point and one that trial lawyers are citing in their fight against tort reform.
McDougal, a 46-year-old Navy veteran, accountant, wife and mother from Wisconsin, was diagnosed with an aggressive form of breast cancer and underwent a double mastectomy in a St. Paul hospital last year. Two days later she was told that the surgery was unnecessary. She never had cancer. A pathologist mistakenly switched her test results with that of another woman who did have cancer.
"She doesn't have a lot of economic loss; her surgery costs are covered by insurance," said Kathleen Flynn Peterson, a Minneapolis attorney specializing in medical malpractice whom McDougal has retained.
Under Bush's proposal, "she gets $250,000 plus the days she misses from work having surgery. And yet look at what has happened to that woman both psychologically and physically. She has been mutilated for the rest of her life and no amount of reconstructive surgery is going to give her back what she had."
In 1999 an Institute of Medicine report found that between 44,000 and 98,000 Americans die in hospitals each year as a result of preventable medical errors.
Peterson, a nurse before she became a lawyer, said: "Three years later nothing has changed; the medical profession does not police itself."
In the case of the mix-up that led to McDougal's unnecessary double mastectomy, officials of St. Paul-based Hospital Pathology Associates, where the mistake occurred, said that as a result procedures have been changed. Folders given to laboratory workers will no longer contain tissue samples from more than one patient. Further, tissue samples will be color-coded and two pathologists must sign off on a diagnosis and cross-check a patient's name and identification number.
Because of the nature of women's physiology, roles in life and place in society, capping damages that can be awarded for non-economic damage, or pain and suffering, affects them disproportionately, said Michael L. Rustad, professor of law at Suffolk University in Boston and co-author of "In Defense of Tort Law" (New York University Press, $45). "Caps on non-economic awards are most likely to affect women who have been injured by cosmetic surgery, sexual abuse at the hands of doctors, reproductive injuries, defective intrauterine devices," Rustad said. "Men, for example, are more likely to be injured in the workplace, accidents involving industrial and farm machinery, falling off ladders and scaffolds."
When a woman loses the ability to have a child because she's injured at the hands of a medical provider, Rustad said, "there is no economic remedy. Non-economic damages are a place where you can have more parity. It's not that women are more emotional than men, it's the kind of injuries they suffer in medical malpractice situations."
Because women live longer than men, they make up a greater proportion of residents in nursing homes. If elderly women are injured because of neglect or negligence on the part of nursing home staff, they would have no possibility of receiving economic damages, Rustad said. The bulk of the award could only come for pain and suffering.
Because women still earn less money on average than men, their economic losses would be less, so juries tend to compensate by awarding more in non-economic damages.
Lucinda M. Finley, professor of law at State University of New York at Buffalo, who researches tort law and gender discrimination, reviewed case reports from the Maryland courts from an 11-year period between 1988 and 1999. Of those cases, she cataloged 88 cases where non-economic damages were awarded.
Finley found that in a subset of 68 cases involving only one plaintiff, female plaintiffs' non-economic awards made up 52 percent of their total awards, whereas male plaintiffs' non-economic damage made up 41 percent of their total awards.
Jobs performed by women are undervalued in the marketplace, Finley contended in a court affidavit for a medical malpractice case. Furthermore, "many economic aspects of women's injuries are not captured by tort economic damages, such as the full value of household and care-taking tasks that can no longer be performed by an injured woman," she wrote in the affidavit.
In five cases involving injuries to women's breasts or breast cancer misdiagnosis, Finley's analysis found that non-economic damages were 60 percent of the total award.
That number, she said, further demonstrates the importance to women of non-economic damages.