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.Simply stated, noneco-nomic losses mean more to women because they form a higher proportion ofwomen s overall damage awards.For example, a 2004 study of jury verdictsin medical malpractice cases in California found that noneconomic damagesrepresented 78 percent of total damages for female plaintiffs but only 48 per-cent for male plaintiffs.54 The study also compared awards before and afterthe imposition of the $250,000 MICRA cap on noneconomic damages andfound that application of the caps exacerbated the gender disparity in dam-age awards.Before the cap was applied, women s median jury award was 94percent of the men s median; after application of the cap, women s medianwas only 58.6 percent of the male median.Damage caps are particularly harsh in cases involving gender-specificinjuries or sexualized injuries that disproportionately affect women.Tell-ingly, the California malpractice data showed that in gynecological cases aDamages | 175subset of cases with all-female plaintiffs the proportion of damages rep-resented by noneconomic damages (median 92.5%) was even greater thanfor female plaintiffs in non-gender-specific types of injuries (median 78%).55Gynecological injuries typically involve  impaired fertility, impaired sexualfunctioning, incontinence, miscarriage, and scarring in personally sensitivebody areas. 56 These harms are frequently serious but are not likely to trans-form into significant loss of wages, at least in the short term.Additionally,with respect to sexual assault victims, data from Florida cases generated twoimportant conclusions: that women were overrepresented in such cases (95%of the total) and that awards for female sexual assault victims were moreheavily concentrated in noneconomic damages (91.7%) than were those formale assault victims (66%).57 These data confirm that noneconomic damagesare especially important for women because they compensate for the kindsof injuries women are likely to incur and often represent the bulk of recoveryin such cases.Empirical research also indicates that subgroups other than women arepenalized by damage caps through the operation of similar dynamics.Foreach of these subgroups, noneconomic damages are disproportionatelyimportant because the victims suffer a relatively low level of economic dam-ages and because courts are unable to recognize the serious nature of theirinjuries except through an award of noneconomic damages.Noneconomicdamages can be crucially important in cases involving injury to children.Par-ticularly in cases of wrongful death of children, noneconomic damages areessential to ensure that awards are not trivial, given that children in today sculture are more likely to be financial liabilities to their parents than financialassets.In malpractice cases in which a child died, for example, applicationof the MICRA damages cap reduced the median wrongful death award bya stunning 79 percent, whereas in cases involving the injury of children thereduction was only 11 percent.58 The combined effect of the damages hierar-chy and the application of the cap substantially reduced the value of a child slife, largely because there is no market price for the lost companionship andgrief suffered by surviving parents.Similarly, there is evidence that damage caps have had a devastating effecton nursing home litigation, in which the plaintiffs are most often elderlywomen.In a recent article, titled Heart of Stone, Michael Rustad posited aprototypical victim in a nursing home case a woman in her late 80s whodies in the nursing home of sepsis, a bacterial infection that poisons theblood.59 In such cases, the victims families often charge that negligence onthe part of the nursing home staff caused the elderly woman to develop pain-176 | The Measure of Injuryful pressure sores, which eventually produced an infection in her bones, has-tening her death.Rustad discovered that more than half of nursing homecases consisted of death cases involving allegations of pressure sores, malnu-trition, and emotional distress [ Pobierz całość w formacie PDF ]