Women Disproportionately Hurt by Legal Restrictions

A $250,000 cap on non-economic damages—the only compensation a jury can provide for an injury itself as opposed to reimbursement for the injured person's out-of-pocket expenses—is unfair to the most severely injured victims of medical malpractice. It would discriminate against women and would do nothing to make health care safer or to lower doctors' premiums.

A cap on non-economic damages discriminates against women.
When a stay-at-home mom is injured or killed by medical malpractice, there are no lost wages to be reimbursed by economic damages. Other than reimbursement for out-of-pocket medical costs, the only form of compensation is non-economic damages, which would be limited to $250,000. Further, women typically earn less than men, even for the same job; so, for the same injury, women would receive less compensation than men.

Are these cases frivolous?
Supporters of caps on malpractice awards refuse to name one case in which a victim received more than $250,000 in a case anyone would consider "frivolous." The arbitrary limit would apply in cases like the following:

Linda McDougal, Wisconsin
Linda McDougal, a 46-year-old Navy veteran, accountant, wife, and mother in Wisconsin, went in for routine mammography and was diagnosed with an aggressive form of breast cancer. She had a double mastectomy. Two days after the surgery Linda was told she had never had cancer. Two doctors and a technician had mixed up her test results with another woman, who was falsely told she was cancer-free. McDougal has had ongoing infections and has undergone one emergency surgery and several other surgeries as a result of the unneeded mastectomies.

Kim Jones, Washington
32-year-old Kim Jones remains severely brain-damaged and in a comatose, vegetative state after undergoing routine tubal ligation surgery following childbirth at a medical center in Washington State. After the operation, hospital staff failed to notice that Kim had stopped breathing, since her vital sign monitors had been removed. Though successfully resuscitated, Kim suffered multiple seizures and was given seizure-control medication that worsened her condition. Today, Kim is unable to control her bodily functions, has no discernable mental functions and is being cared for at a convalescent center. According to news media reports, the anesthesiologist was impaired by narcotics he had been diverting from patients. ["A Cause of Action: Washington Families Search for Justice," Washington State Trial Lawyers Association, 2003]

Dialyn Powers, Arkansas
Dialyn Powers, 39, went to the hospital for a hysterectomy. During a normal pre-operative procedure, a nurse-anesthetist (NA) taped her eyes closed, used a drug to temporarily paralyze her, and intubated her—but he forgot to turn on the anesthesia. When he realized his mistake, instead of alerting the surgeon, he turned on the gas late, gave Dialyn a shot of narcotics and another drug meant to give her amnesia, and allowed the surgery to proceed. Dialyn was awake when her surgeon was in the process of cutting her open. She remained awake and feeling the surgery for 12-35 minutes. She now suffers from post-traumatic stress disorder.

Women are exposed to more medical negligence.
Historically, women are more often exposed to dangerous medical products and medical negligence than men. Some medical malpractice claims are unique to or more prevalent against women, including obstetrical malpractice and sexual assault by health care providers. In addition, women suffer harm from gender-specific products such as breast implants and birth control devices.

Congress should work for real health care solutions.
The Congressional Budget Office has calculated that even the most drastic limits on medical malpractice damages would reduce overall health care costs by less than one half of one percent—and would do nothing to help the 100,000 Americans who die each year from preventable medical errors. Congress should work to improve patient safety and reduce medical negligence before it shields bad doctors and the insurance and pharmaceutical industries from accountability.

Updated February 7, 2005