Unequal Justice: The Hidden Gendered Impact of "Tort Reform"

By Darshana Patel

Five years ago, Sherry Keller underwent a complete hysterectomy. Soon after the difficult surgery, however, she began experiencing problems.

Keller’s doctor called her into the office to check on the incision. Cleaning the incision, the doctor pulled on the wound. Because the surgeon did not properly suture her, the incision opened from hip to hip.

The doctor then left Keller alone on the examination table for over a half an hour. as she proceeded to check on other patients. Meanwhile, Keller went into shock, and lost and regained consciousness three or four times. Eventually, she fell off the examination table, hitting her head and breaking her neck.

When she regained consciousness, Keller managed to drag herself into the hallway to get help. After finding Keller in the hallway, the doctor argued with Keller’s husband about whether or not to call an ambulance. Despite her doctor’s protests, Keller was finally taken to the hospital. While the clock ticked, Keller’s spinal cord swelled and caused even more damage.

Today, Sherry Keller is an incomplete quadriplegic, confined to a wheelchair.

If the Bush administration gets its way, in the future women like Sherry Keller will be entitled to no more than $250,000 for the pain and suffering caused by doctor misconduct.

A cap on medical malpractice lawsuits is just one among many changes to the U.S. civil justice system that the Bush administration and the Republican-controlled Congress are trying to engineer. This “tort reform” agenda [a tort is an act of negligence or wrongdoing, and torts is the area of law by which victims of wrongdoing can sue perpetrators for compensation] has long been a top priority of Big Business, which does not want to be held liable for the wrongs it commits and particularly dislikes the unpredictability inherent in decision-making by juries. In February, Congress passed and President Bush signed a bill to change the way class actions — suits brought by groups of victims — are handled.

Lost among the propaganda campaign for “tort reform” waged by Big Business and its allies, say civil justice and women’s groups, is the way in which these proposed — and increasingly implemented — changes in the justice system would discriminate against women like Sherry Keller.

Pain and suffering

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.

There is no science to translating non-economic injuries into a dollar award. By necessity, the compensation that victims should receive for their injuries is determined on an individual basis by judges and juries based on the evidence presented in each case, not by reference to any set market value.

In considerable part because of the uncertainty introduced by such a system, corporate lobby groups, the insurance industry and the healthcare industry have prioritized caps for non-economic damages. “We think it is a question of finding reasonable parameters,” says Niel Trautwein, a health policy expert at the National Association of Manufacturers. “Pain and suffering damages are inherently speculative in nature because they compensate for injuries that are hard to measure. It is a question of setting a more rational system.”

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?”

The Ob/gyn ploy

The “Healthy Mothers and Healthy Babies” Act may not pass Congress, but the Bush administration and “tort reform” advocates use the OB/GYN field as a leading example to make the case for limiting non-economic damages. They claim the compensation awards in these lawsuits limit women’s access to healthcare by driving up insurance premiums and discouraging doctors from practicing in this high-risk medical field.

The National Association of Manufacturer’s Trautwein says, “There is a great problem with access to obstetrics care. We really don’t see this [‘tort reform’] as being hostile to women. We see it as more rational scheme of compensation and a more affordable way for doctors to practice medicine.”

A national survey commissioned by the American College of Obstetricians and Gynecologists claims that one in seven of its members stopped practicing obstetrics specifically because of the high risk of liability claims.

But civil justice advocates say there is an insurance problem, not a jury problem. Rising insurance rates are driven not by an increase in awards in medical malpractice cases, which in fact have remained stable, they say, but by the cyclical nature of the insurance industry. Insurance companies make their money by investing premiums — when these investments go south, insurance premiums inevitably skyrocket, as the insurers look to make up lost income. By spring 2005, medical malpractice insurance rates have begun to stabilize, notes the Center for Justice & Democracy — equally in states with non-economic caps and those without.

Who gets punished?

As well as limiting non-economic damages in malpractice cases, industry lobby groups are working to legislate caps on punitive damages. Juries award punitive damages in addition to compensation for economic and non-economic damages in order to punish defendants that have behaved egregiously. Like non-economic damages, punitive awards are unpredictable — proponents say it is their uncertainty that forces industry to design safer products for consumers. If punitive damages are limited, companies frequently can simply incorporate the cost of paying some compensatory damages into the price of doing business — instead of designing products and undertaking precautions to avoid causing harm in the first place.

Juries have awarded large punitive damages in a number of cases involving women’s healthcare products. These awards have been important in meting out justice, getting dangerous products off the market and deterring future misconduct by other companies, say women’s advocates, and limiting punitive damages would open the door to more corporate abuses.

“Putting the consumer at risk and protecting the companies is a dangerous precedent to set,” says Judy Waxman of the National Women’s Law Center in Washington, D.C.

A 2001 report from Public Citizen’s Congress Watch, “Smoking Guns: Corporate Behavior and the Harmful Impact of a Punitive Damages Cap,” highlights how punitive damages have served to protect female patients and consumers:

• In the Dalkon Shield case, A.H. Robins introduced a plastic intrauterine device (IUD) to the market that was fitted into thousands of women in the early 1970s. Improper design led many women with the Dalkon Shield to develop uterine infections and suffer from infertility, spontaneous abortions, pelvic inflammatory disease and even death. Even after receiving warnings from quality control supervisors and physicians and reports of spontaneous abortions in women who became pregnant after using the IUD, Robins left the product on the market and failed to issue warnings. More than 200,000 women were injured and at least 17 women died as a result. More than 10,000 women sued Robins and the company was forced to pay over $24.8 million in punitive damages and take the IUD off the market.

• In the 1980s, Playtex introduced a line of super absorbent tampons made of polyacrylate fibers. These fibers, it turned out, promoted the growth of dangerous bacteria that produce toxins that could fatally infect and poison a person’s system within a few days. This condition, known as toxic shock syndrome, developed in over 2,000 women and killed approximately 100 between 1979 and 1995. When information emerged about the links between toxic shock syndrome and high absorbency tampons, other manufacturers responded by removing these products from the market. But Playtex continued to market the tampons, hoping to profit by advertising its high-absorbency tampons while other companies were withdrawing them. After a jury awarded $10 million in punitive damages in a case against Playtex, tampon companies added inserts into their packaging to warn women of TSS symptoms.
  

• The Ortho Pharmaceutical Corporation sold a high-estrogen oral contraceptive despite the company’s knowledge that excessively high levels of estrogen increased the risk of stroke. Ortho actually denounced research showing the elevated risk of stroke, and kept its high-estrogen contraceptives on the market, seeking to profit by selling the only one of its kind. After taking Ortho to court, an injured consumer was awarded $2 million in compensatory damages and $2,750,000 in punitive damages. Only after the trial did Ortho reduce the level of estrogen in its oral contraceptives.

Class discrimination

On February 17, 2005, Congress passed the Class Action Fairness Act, which will move almost all class action suits out of state courts and into the federal system. Federal courts have historically been very hostile to class actions, typically refusing to let them proceed.

The class action bill “will actually do away with these frivolous cases in the courts, but it is not going to stop a legitimate case from coming to court,” asserts Larry Fineran of the National Association of Manufacturers.

But civil justice advocates say there is every reason to expect federal courts’ traditional hostility to class actions to continue.

“The class action bill covers mass torts, so if a drug injures many people, the case will be thrown into the federal system and there could very well be knocked out of court,” says Joanne Doroshow of the Center for Justice and Democracy.

The consequence may be to deny many victims — and especially women — the effective right to seek compensation. Class actions are important because they enable plaintiffs to pool resources and make it cost-effective to file suits. In many circumstances, lawyers will not find it worthwhile to pursue complicated cases if they represent only one injured party — the potential recovery may not be worth the time and required monetary investment. This is especially so if that party is a woman who faces caps on what she can recover in non-economic damages or in punitive damages.

Thus, say defenders of the civil justice system, what is at stake in the “tort reform” controversy may be the constitutional right of individuals, especially women, to obtain a jury trial. Says Sherry Keller, “My government has no place negating my value as a human being and denying my right to a trial in front of a jury of my peers to determine what is fair compensation.”

As Multinational Monitor was going to press, a jury ruled against Sherry Keller, finding that, irrespective of the consequences, leaving a patient alone does not constitute malpractice. The ruling reiterates the reality that it is difficult for plaintiffs to prevail in the civil justice system. Keller is now filing an appeal.

Darshana Patel is a freelance writer in Washington, D.C>