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

Article excerpt

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.


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. …