University at Buffalo - The State University of New York

Published: July 17, 2003

By CHRISTINE VIDAL
Contributing Editor

Tort reform legislation that would cap the non-economic damages that can be recovered in a health-care liability suit would have a significant adverse impact on women and the elderly, according to research conducted by a UB law professor.

"The proponents of damages caps have given little or no thought to what their effects might be on the ability of injured individuals to find lawyers and gain access to the civil justice system, or on whether certain groups of people will be more or less adversely affected," said Lucinda Finley, Frank G. Raichle Professor of Trial and Appellate Advocacy at UB and an nationally recognized expert on tort reform who has testified several times before Congress on the women's health aspects of product liability reform legislation.

Moreover, while proponents of damages caps claim that limiting awards is the only way to stem sharply rising insurance policy costs, there is no evidence that caps on non-economic damages will have any significant effect on insurance rates, she said. In fact, in states that have capped non-economic damages, insurance costs have not gone down, either overall or in comparison to states without tort reform.

Congress has defined non-economic damages as "damages for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury to reputation and all other non-pecuniary losses of any kind of nature."

This spring, the U.S. House of Representatives passed the "Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2003," which caps the total amount of non-economic damages that can be recovered in any health-care liability suit at $250,000, regardless of the number of plaintiffs or defendants, but the bill recently was defeated in the U.S. Senate.

Finley studied how juries from several states allocate their damage awards between economic loss damages and non-economic loss damages, and then compared cases by gender. She presented her findings at the ninth annual Clifford Symposium on Tort Law and Social Policy held in April at De Paul University School of Law in Chicago.

"While overall, men tend to recover greater total damages, juries consistently award women more in non-economic loss damages than men, and the non-economic portion of women's total damage award is significantly greater than the percentage of men's tort recoveries attributable to non-economic damages," she said.

"Any cap on non-economic loss damages will deprive women of a much greater proportion and amount of what a jury awarded than men. Non-economic loss damage caps amount to a form of discrimination against women, and contribute to unequal access to justice and fair compensation for women."

Economic loss damages, particularly damages to compensate for past or future wage loss, are the most fundamental type of damages and have been relatively immune from attack by proponents of tort reform.

However, this type of damages provides the most benefit to higher wage earners, Finley said, and thus women and minorities and the poor will receive lesser amounts of economic-loss compensation than more economically well-off white men.

Wage compensation is only one factor that contributes to the disparity.

Several types of injuries are disproportionately suffered by women, such as sexual assault; reproductive harm, including pregnancy loss or infertility, and gynecological medical malpractice. The resulting emotional distress and grief, altered sense of self and social adjustment, impaired relationships or impaired physical capacities such as reproduction are not involved directly in market-based wage-earning activity.

"Many of these more precious, indeed priceless, aspects of human life are virtually worthless in the market," she said, "and these are compensated through non-economic damages. For example, in cases where women are sexually assaulted, including by health-care providers, more than 90 percent of the average tort award was for non-economic loss. A cap would amount to a ceiling."

The elderly also would be unfairly penalized by limits on non-economic damages since retirees suffer no wage loss from life-altering injuries.

Caps on non-economic damages also would make it more difficult for victims to find legal representation for certain types of cases, Finley's research showed.

Lawyers are less willing to bring suits acknowledged to be meritorious unless they cross a certain threshold of economic loss damages, she said, no matter how devastating the injury and how compelling the proof of negligence or medical error.

For example, Finley said, in California, which has capped non-economic loss damages in medical malpractice since 1976, parents whose babies or children die as a result of obstetrical or medical malpractice have difficulty finding lawyers willing to take their cases since the majority of the compensation will be in non-economic loss damages.

On the other hand, babies and children who survive the medical error can find lawyers willing to pursue these high economic-damage cases, she added.

"This will lead lawyers to be unwilling to pursue such claims, leaving injured people uncompensated and the underlying harmful conduct undeterred," Finley said.