Malpractice 'Caps' Treat Women, Children and Seniors as Second-Class Citizens

The Huffington Post
Wednesday, October 29, 2014

By Joanne Doroshow, Center for Justice and Democracy at New York Law School

When an injured patient "wins" a medical malpractice case, where does the money go? Well, if he or she needs medical care, the money pays for that care, which the person did not need until they were hurt. In other words, much of the money (ironically) goes right back into the health care system to treat injuries that the medical industry itself inflicted.

If the patient can no longer work, they'll be compensated for their lost earnings. But what if malpractice destroyed the patient's reproductive system, or disfigured or mutilated their body? Or what if a child dies due to gross negligence? Shouldn't there be compensation for that too? The answer, of course, is yes. And juries make those decisions everyday -- that is, unless the state has "capped" compensation for these kinds of injuries, also known as "non-economic damages." In those states, politicians who have never heard a word about a case, seen a lick of evidence or have any idea about the depth of someone's loss, have already decided what that damage is worth.

Half the states today have brutally-low "one-size-fits-all" caps, or limits on compensation for injuries like this. A child who is blinded is treated like a senior citizen who has permanent pain due to negligent care or a mother who loses her son or daughter. "Caps" apply no matter how much merit a case has, or the extent of the misconduct by the hospital, or the severity of the injury or loss.

When a state "caps" non-economic damages, politicians have essentially decided to value the destruction of someone's life by what that person would have earned in the marketplace, since lost earning are never "capped." This promotes a kind of caste system, which brands entire classes of low- or non-earners in our society -- including children -- as worth less than the life of a corporate executive. Indeed, there has already been a great deal written about this. In her paper, "The Hidden Victims of Tort Reform: Women, Children and the Elderly," University of Buffalo Professor Lucinda Finley, who studied jury awards, noted,

[C]ertain injuries that happen primarily to women are compensated predominantly or almost exclusively through non-economic loss damages. These injuries include sexual or reproductive harm, pregnancy loss, and sexual assault injuries...

[J]uries consistently award women more in non-economic loss damages than men... [A]ny cap on noneconomic loss damages will deprive women of a much greater proportion and amount of a jury award than men. Noneconomic loss damage caps therefore amount to a form of discrimination against women and contribute to unequal access to justice or fair compensation for women.

Professor Finley's work was published a few years ago and now new evidence provides support. It comes from Rand researchers, who used the insurance industry's own data to examine the impact of caps. In some ways, the results are obvious enough, finding that caps reduce average payouts by 15 percent, while also finding that extremely brutal caps, such as California's current $250,000 cap, reduce payments even more.

But then the researchers examined the impact of caps according to medical specialty and they found, "The largest effect [of a non-economic damages cap] was in pediatrics" followed by "obstetrics and gynecology" and then, cardiology. Children. Women. And if heart disease statistics are any guide, seniors. It is more evidence that caps have a disproportionate impact on children, women and seniors -- those more likely to receive a greater percentage of their compensation in the form of non-economic damages. The data is clear: Caps take money out of their hands and put it into the pockets of insurance companies. This is simply unfair.

Unfortunately, terrible injuries due to medical malpractice sometimes happen and when they do, the civil justice system should be fully there for the victims. Dr. Lora Ellenson, a pathologist at New York Presbyterian Hospital-Weill Cornell Medical Center, whose son, Thomas, was brain-damaged at birth due to negligence, put it this way while expressing strong opposition to a proposal to bring caps to New York State:

My son cannot walk or talk. He is not able to carry out activities of daily living -- eating, dressing, toileting, bathing -- without constant assistance from an adult.

As a physician I have had to come face-to-face with the knowledge that mistakes are made. Like most physicians, I live with the reality that we might one day make an error and be sued. When that day comes, I will be grief-stricken, not because of the process -- although I am sure that won't be pleasant -- but due to the fact that I may have caused someone irreparable damage.

My only hope is that the damaged person can get what they need to live in the best way that they are able. As a physician, I want to know that there will be compensation to rebuild a life that has been diminished. Yet, as a mother, I also know that no typical physician, nor the system within which they operate, can possibly understand the true depth of these mistakes.

I wish Dr. Ellenson's perspective were more represented by organized medicine instead of its interminable focus on stripping away the rights of children like Thomas Ellenson. Laws that cap compensation for non-economic injuries treat women, children and seniors as second-class citizens in this country. The terrible injustices that caps create are a blemish on our entire justice system.


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