Hidden Victims of Tort Reform: Women, Children and the Elderly

by Lucinda M. Finley (53 Emory L.J. 1263)

In a study examining how juries in several states allocate their damage awards between economic and non-economic damages, Professor Lucinda Finley¹ found that caps on non-economic damages "benefit insurance companies by increasing their profits, while producing no benefit for doctors, and causing a detriment to injured people, especially women and the elderly."²

Caps on non-economic damages would unfairly penalize women, minorities, elderly.
Capping non-economic damages inflates the importance of economic damages, which compensate for past or future wage loss and primarily benefit higher wage earners. Thus women, minorities and the elderly, who may suffer less economic loss when injured by defective products or medical malpractice, will receive lesser amounts in economic loss compensation than economically well-off white men.

Injuries disproportionately suffered by women.
Several injuries are disproportionately suffered by women—sexual assault, reproductive harm such as pregnancy loss and infertility, and gynecological medical malpractice—and are not involved directly in market-based wage earning activity. Rather, these injuries—grief, altered sense of self and social adjustment, impaired relationships, or impaired physical capacities—are compensated through non-economic damages. Thus, "non-economic loss damages become the principle means by which a jury can signal its sense that these types of harm are serious and profound and provide a woman plaintiff with what it regards as adequate compensation."³ Capping these damages would make these injuries virtually worthless as tort claims.

Women deprived of greater jury awards compared to men.
Caps on non-economic damages would deprive women of a much greater portion and amount of jury awards than men. In California, Finley found that caps intensified already-existing disparities between women's average tort awards and men's. Before applying the cap women's average jury awards were 52% of men's average awards. After the reduction imposed by California's MICRA law, women on average recovered only 45% of men's average recoveries.⁴

Caps discriminate against elderly women.
Damage cap laws will also disproportionately affect the elderly who, because their earning days are past and have a lower life expectancy, have a much higher proportion of non-economic damages than general tort awards. In Florida, the median non-economic award to elderly nursing home plaintiffs was over 61% of the total award. For elderly women the median was even higher, over 68%. On average over 96% of elderly women's total award were for non-economic damages.⁵

Caps have a disparate impact on cases involving medical malpractice resulting in the death of a child.
Finley found that that "the impact of the cap in cases where an infant or child died as a result of malpractice was even more draconian than in adult cases."⁶ Research findings show that in California the MICRA cap caused an 80% reduction in average recoverable damages—barely above the $250,000 cap—"highlighting the tendency of the cap to function as a ceiling on recovery in cases where a family was devastated by the death of a child."⁷

1. Lucinda Finley is the Frank G. Raichle Professor of Trial and Appellate Advocacy at University at Buffalo Law School and a nationally recognized expert on tort reform.
2. 53 Emory L.J. 1263, at 1272.
3. Id at 1281-1282.
4. Id at 1285.
5. Id at 1305.
6. Id at 1292.
7. Id.

February 4, 2005