Caps on Non-Economic Damages Disproportionately Affect Women, Children, Seniors

Last week’s post ended with a tentative prediction that over the next few years we will see a push at the national level to enact caps on damages in civil cases. To explain it simply, a cap on damages is the equivalent of denying a plaintiff the full measure of his or her damages in certain types of cases.

Often, specific kinds of damages are limited; in California for example, individuals can collect no more than $250,000 for pain and suffering, loss of consortium, and loss of quality of life when they are injured through no fault of their own. Critics of this measure have called it, pejoratively, a “one-size-fits-all” cap, but as Joanne Doroshow notes in a recent Huffington Post article, one size does not fit all.

Doroshow’s piece proposes that caps on non-economic damages “treat women, children, and seniors as second-class citizens.” While this sounds rather sensational, it has empirical support. She reports on a paper by University of Buffalo professor Lucinda Finley that claims “injuries that happen primarily to women are compensated predominantly or almost exclusively through non-economic loss damages.” Think about sexual or reproductive injury, loss of the ability to bear a child, or injuries due to sexual assault. These are not as objectively calculable as lost wages, but they are just as important to consider.

The data show that juries tend to award women “more in non-economic loss damages than men,” and as such amount to nothing short of discriminatory behavior toward women. In Finley’s words, such laws “contribute to unequal access to justice or fair compensation for women.” More recent studies corroborate these assertions for the most part, but a 2014 article in HealthAffairs claims, “The largest effect [of a non-economic damages cap] was in pediatrics.” Obstetrics and gynecology followed close behind in second place, with cardiology in third (seniors require cardiologic care at a rate higher than their younger counterparts).

To Doroshow, these three groups, all of whom are “more likely to receive a greater percentage of their compensation in the form of non-economic damages,” are made to resemble second-class citizens. Caps like these, in effect, allow insurance companies to keep more of the money that juries have decided belong to deserving individuals.

The Huffington Post article closes with the story of Dr. Lora Ellenson, a pathologist in New York who recently argued against caps on damages in her home state. She has a son who, due to brain damage at birth because of medical negligence, is permanently disabled. He does not have the ability to walk or speak, or to dress, eat, or bathe himself. Dr. Ellenson said that there is “absolutely no way” she could have cared for her son had a $250,000 cap on non-economic damages been in effect when she sued the negligent doctor. “I continue to believe, as a practicing physician, that the way to curtail medical costs is not by further victimizing victims of malpractice, but to put in place mechanisms and systems in hospitals and doctors’ offices to minimize risk to patients.”