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Yet Another Attack on Women -- The Medical Malpractice Bill

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This week, U.S. House leaders will bring to the floor H.R. 5, legislation that would limit the legal rights of injured patients and families of those killed by negligent health care. This bill is so outrageously broad that it covers not only cases involving medical malpractice, but also cases involving unsafe drugs and nursing home abuse and neglect.

Up until now, there has been so much opposition to the bill -- not just from the public interest community but also from Tea Party folks -- that House leaders haven't had the nerve to bring this bill to a vote.

Now they've suddenly decided to force the issue. But if I were them, I might think twice.

It's no secret that that the GOP has been busy lately driving away half the country's voters -- i.e., women. As Maureen Dowd put it, as "Republican men to wrestle American women back into chastity belts ... [i]n some kind of insane bout of mass misogyny, Republicans are hounding out the women voters."

The key provision in H.R. 5 would establish a permanent across-the-board $250,000 "cap" on compensation for "non-economic" injuries suffered by patients. Non-economic damages compensate for intangible but real "quality of life" injuries, like permanent disability, loss of a woman's reproductive system, disfigurement, trauma, loss of a limb or blindness. Limiting compensation for these kinds of injuries is discriminatory. For example, when President Bill Clinton vetoed a products liability bill in 1996, he explained,

The legislation would make it impossible for some people to recover fully for non-economic damages. This is especially unfair to senior citizens, women, children, who have few economic damages, and poor people, who may suffer grievously but, because their incomes are low, have few economic damages.

For women, the discrimination is even broader than this. In a 2004 law review article, University of Buffalo Law Professor Lucinda Finley wrote about empirical research she conducted of jury verdicts, which found,

[C]ertain injuries that happen primarily to women are compensated predominantly or almost exclusively through noneconomic loss damages. These injuries include sexual or reproductive harm, pregnancy loss, and sexual assault injuries." Also, "[J]uries consistently award women more in noneconomic loss damages than men ... [A]ny cap on noneconomic loss damages will deprive women of a much greater proportion and amount of a jury award than men. Noneconomic loss damage caps therefore amount to a form of discrimination against women and contribute to unequal access to justice or fair compensation for women.

There are many reasons to oppose forcing a vote on H.R. 5, but the impact of this bill on women is a pivotal one. And for the GOP, the timing could not be more foolish.