Could non-economic damages caps be discriminatory?

In our prior post, we talked about how caps on non-economic damages could be harmful to medical malpractice plaintiffs, in that they may not compensate injuries that involve a great deal of pain and suffering or long-term emotional injuries. With these scenarios possible when medical negligence mars procedures involving reproductive organs or victims of sexual assault, could it be that some malpractice victims are treated differently than others?

According to a study about women, children and elderly medical malpractice victims, it appears that their injuries are largely compensated through non-economic damages, which are capped at $250,000 in a number of states.

Essentially, damages caps create an unfair value system where certain members of society may not recover what they should be entitled to based on the nature of their injury. Instead, damages may be determined on a person’s earning capacity. Since women tend to be awarded more than men when it comes to non-economic damages, such caps could be seen as discriminatory and work towards an unequal system of access to justice.

Further, a recent study finds that economic caps affect victims of pediatric malpractice more than women. The study also suggests that if victims of heart disease were considered, senior citizens who are malpractice victims would be largely affected as well.

Fortunately, New York currently does not have such limitations. But it is a constant battle in the state to stave off challenges to impose such caps similar to those in Pennsylvania, New Jersey, Michigan and California. It remains to be seen whether a cap will be imposed in the future, but the discriminatory effect it would have on women and children cannot be ignored.