Medical Malpractice "Reform" Will Disproportionately Harm Women

October 29, 2009

Female victims of medical negligence often encounter unique problems when pursuing medical malpractice claims as a result of the types of damages they most commonly sustain.

October 29, 2009 /24-7PressRelease/ -- Medical Malpractice "Reform" Will Disproportionately Harm Women

Article provided by Kramer & Dunleavy, LLP
Visit us at http://www.kramerdunleavy.com

Contrary to the assertions of those alleging the need for medical malpractice reform, the biggest crisis related to medical malpractice is not an epidemic of frivolous lawsuits. The real emergency is negligent medical care.

Preventable medical errors are this nation's sixth leading cause of death, according to estimates by the Institute for Medicine, a not-for-profit, non-governmental organization which provides independent guidance and serves as an advisor to the nation to improve health. The IOM concludes that medical errors cause more than 98,000 deaths per year.

Researchers from the Harvard School of Public Health and Brigham and Women's Hospital examined 1,452 medical malpractice lawsuits in 2006. They found that more than 90 percent of the malpractice claims showed evidence of physical injury, which was generally severe. In 63 percent of these cases, the injury resulted from physician wrongdoing. In a quarter of the claims, the patient died.

The compensation received by injured patients greatly depends on the merits of their claims, as well as the severity of the injury. However, most people injured by medical malpractice do not bring legal claims. The study also found that when baseless malpractice suits were brought, the courts generally threw them out before trial. Frivolous cases were rare and when they did go to trial they usually didn't yield a payment for the plaintiff.

Examining the other side of the issue showed that 236 cases were thrown out of court despite evidence of injury caused by physician error.

The Unequal Effects of Caps on Damages to Women

Injuries caused by substandard medical care are a real problem in this country. Female victims of medical negligence experience special problems due to the nature of the damage they sustain and their difficulty in receiving compensation for their injuries. Women are especially hurt by efforts to limit the amount of compensation for the non-economic harms -- their pain and suffering -- that they sustain as a result of medical negligence.

For an illustration of this problem, consider a study the Rand Corporation completed in 2004 regarding decades-old California legislation. In 1975 California passed MICRA (Medical Injury Compensation Reform Act). The centerpiece of this legislation was a $250,000 cap, or limit to the amount of recovery on non-economic damages. This law has since been the model used by other states which also seek to restrict patients' legal rights against doctors and hospitals in those states.

The Rand Corporation study found that the cap disproportionately impacted plaintiffs with small economic loss who nonetheless had significant damage to their quality of life. This trend meant that women were particularly harmed by caps or limits on pain and suffering damages. Women's medical malpractice claims often arise from obstetrics and gynecology procedures that impact fertility, sexuality or lifestyle. These injuries include sexual or reproductive harm and injuries relating to pregnancy loss. These conditions are not as susceptible to easy economic analysis, for the harm done may well be harm that does not cause loss of wages or significant out of pocket economic damages.

To understand this claim, consider some of the most common forms of medical negligence affecting women.

Unnecessary Hysterectomies

It is estimated that annually over 600,000 women undergo a hysterectomy. Some experts estimate that 75 percent of these procedures are unwarranted and unnecessary. Removal of the uterus renders the woman unable to bear children, changes her hormonal levels, may impact on her sexuality and depending on the extent of the surgery, may put her into menopause.

Studies have found that a hysterectomy with removal of the ovaries results in women having a greater risk of heart disease.

The Hysterectomy Educational Resources and Services (HERS) Foundation conducted a survey of women who have had hysterectomies. Women reported irritability, fatigue and diminished sexual desire. Such surgeries may also result in damage to the bladder and bowels. Unnecessary hysterectomies are perhaps the most common abuse of women in the health care system.

Birth Injuries

Medical malpractice involving women's reproductive health can have devastating effects on women and their families. Many children suffer devastating injuries during birth due to medical negligence or obstetric malpractice.

From a financial standpoint, birth injuries may cause significant life-long expenses. These economic damages may include the cost of corrective surgery, therapy, adaptive equipment or home remodeling, special education, and the likelihood of future custodial care. However, any parent of a child with a serious condition caused by a birth injury understands that the consequences reach well beyond the financial implications. The loss of life's enjoyment, pain and suffering are all legitimate components of non-economic damage awards that should not be limited by a cap.

Failure to Diagnose Breast Cancer

Women are also disproportionately impacted by the failure to diagnose cancer. When discovered and treated early, breast cancer may be more effectively managed and controlled. However, sometimes breast cancer is not diagnosed despite the fact that the woman has sought medical care. This can be due to physician error or negligence. A doctor may minimize the significance or underestimate the severity of a breast lump or other symptom. Mammograms may be misread. Early detection is the key to improving the chance of survival. A delay in diagnosis may increase the size of the tumor, the likelihood of metastasis, and worsen the prognosis of the cancer when treatment finally begins.

Conclusion

Many women have been victims of inadequate medical care and have suffered injuries that are significant and permanent. These victims may also suffer tremendous mental anguish. Sometimes women's complaints to physicians are not taken seriously. Some physicians may ignore valid concerns expressed by female patients.

In these common examples of medical negligence, the comprehensive harm does not lend itself to clear economic valuation. A woman's inability to have children will not result in a long-term inability to work, but may cause her tremendous emotional pain. Although a birth injury may have demonstrable financial costs, this valuation alone could not begin to address the life-long impact of an otherwise healthy child's lost potential.

The fact that the harm reaches beyond pure economic loss or financial damages does not make the resulting lawsuit frivolous.

Limiting the rights of victims to be made whole in terms of their out of pocket medical expenses and lost wages alone and placing a limit on recovery of damages for pain and suffering will not solve the problems of the current health care system. Medical malpractice is taken too lightly by those who propose "reform". It is estimated that only two to three percent of medical negligence cases lead to a malpractice claim. Trials may receive much attention, but they are the exception. A small fraction of victims with serious grievances ultimately receive compensation.

If you or a loved one has been a victim of medical negligence, contact a medical malpractice attorney to protect your legal rights.

Article provided by Kramer & Dunleavy, LLP
Visit us at http://www.kramerdunleavy.com

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