MISS DIAGNOSIS: GENDERED INJUSTICE IN MEDICAL MALPRACTICE LAW.

• Author: Plaza, Cecilia

Abstract

Women patients have experienced a history of discrimination in medical practice. Medical malpractice litigation offers an avenue for patients affected by practitioner negligence to recoup the costs inflicted by their injuries. The present study investigates the impact of patient gender on plaintiffs' recovery amounts in medical malpractice suits alleging delayed, wrongful, or misdiagnosis, as women are more vulnerable to diagnosis-related malpractice. This study also analyzes the impact of contextual factors such as state demographics, state malpractice legislation, and features of each instance of litigation, such as the duration of each case. Using a national database of resolved malpractice cases from 2004 to 2018, this study uses several different statistical models to shed light on the contours of the gender gap in medical malpractice litigation. This study also offers suggestions for future research and potential solutions to address the gender gap and increase equal access to legal recourse after medical injury due to negligence for patients of all genders.

INTRODUCTION

Women have historically experienced disadvantages in accessing quality medical care. (1) One major disadvantage that women face relative to their male counterparts is the risk of misdiagnosis--which includes delays in diagnosis, wrongful diagnosis, and no diagnosis at all. (2) Women are more likely to face misdiagnosis than men. (3) This can be attributed to two main factors: the dearth of medical scientific knowledge about women's health (4) and the widespread distrust among health professionals of their women patients relative to male patients. (5) The combination of the "knowledge gap"--the medical community's lack of knowledge about women's health due to women's historical underrepresentation in medical research--and the trust gap--the medical profession's history of distrusting or downplaying women's reports of their own symptoms--creates an increased risk of missed, delayed, and incorrect diagnoses for women. (6)

The legal realm of medical malpractice offers a remedy for individuals who have been adversely affected by medical errors due to negligence, including those who have suffered wrong, delayed, or missed diagnoses. (7) However, the legal standard for medical malpractice currently protects the common practice of discounting women patients and their reports of their symptoms. The malpractice standard only requires that practitioners abide by what ordinary practitioners in their field would do in similar situations; (8) the pervasiveness of the knowledge and trust gaps suggests that this standard more negatively impacts women who experience and subsequently file suit for diagnosis-related malpractice than their male counterparts.

The present study analyzes the interaction of the knowledge and trust gaps with the legal standard for medical malpractice and the resulting impact on women's diagnosisrelated medical malpractice lawsuits. Part I offers a brief history of the knowledge and trust gaps and their impact on patient care. Part II presents an overview of medical malpractice law and the gaps in the law which perpetuate gender bias. Part III outlines the methodology used for this study to assess the impact of the knowledge and trust gaps on women patients who pursue medical malpractice actions. Part III also explains various statistical models and their usefulness in explaining gender bias in medical malpractice actions. Part IV summarizes the results of this study and discusses the implications for women patients who pursue medical malpractice lawsuits. Part IV concludes by suggesting legal reforms to address gender bias in medical malpractice law.

Ultimately, this study finds that patient gender does significantly impact medical malpractice lawsuit outcomes and that gender interacts with other key contextual factors to produce such disparities. The presence of a gendered impact indicates that women are disadvantaged both as patients in the healthcare setting and later as plaintiffs in the legal setting, and that the current legal standard for medical malpractice offers a disincentive to change medical practice and patient care.

1. The Knowledge Gap, the Trust Gap, and the Consequences for Women

   1. The Knowledge Gap

      There is less information available about women's health than about men's health. (9) In other words, there is a knowledge gap between the medical profession's understanding of men's health and women's health. This is a natural consequence of women's historical underrepresentation in biomedical studies and the relative neglect of diseases that predominantly affect women in medical research, both of which continue to this day despite patient advocacy efforts. (10) The resulting knowledge gap affects the quality of medical care that women patients receive.

      The male body as the default for medical science goes back to the Ancient Greeks: Aristotle believed women's bodies were simply "mutilated" male bodies. (11) "Ovaries" were referred to as female testicles and were not named as a separate organ until the seventeenth century. (12) Even in the twenty-first century, the male body is still often depicted as the default human body; medical textbooks often use illustrations of the male body to refer to neutral body parts. A 2008 study of over 16,000 images in textbooks recommended by prestigious universities in the United States, Europe, and Canada found that male bodies were used three times more frequently than female bodies to illustrate non-reproductive body parts. (13) This is not a harmless error; there are actually sex-based (9) See Criado Perez, supra note 4, at 196 (explaining that medical science research has historically been based on the "average" male body); Reshma Jagsi et al., Under-Representation of Women in HighImpact Published Clinical Cancer Research, 115 Cancer 3293, 3299 (2009) (finding that women are underrepresented in cancer research); Sherry A. Marts & Sarah Keitt, Foreword: A Historical Overview of Advocacy for Research in Sex-Based Biology, 34 Advances in Molecular & Cell Biology v (2004) (discussing a long-standing need to collect more data on women's health and bodies). differences in human tissues, organs, and the course and impact of diseases. (14) Yet women have been and continue to be underrepresented in medical research. (15) Thus, for centuries, medical professionals have been treating women patients according to a male model that often does not fit women's bodies.

      The National Institutes of Health (NIH), the largest public funder of biomedical research, (16) took note of this issue in 1985, when it issued new report on gender representation in medical research. (17) But not much tangible change occurred until after 1990, when the Society for the Advancement of Women's Health Research (SWHR) demanded an audit of the NIH by the U.S. Government Accountability Office (GAO). (18) Following the GAO audit, the NIH formed its Office of Research on Women's Health (ORWH); (19) mandated the inclusion of women as research subjects; and launched the Women's Health Initiative, a huge medical research study to collect the data on women that was already available for men. (20) In 1993, the NIH Revitalization Act made the ORWH a permanent part of the NIH (21) and mandated that NIH-funded studies include enough women and racial minorities to conduct a valid analysis of differences. (22) It also mandated increased efforts to research conditions that disproportionately affect women, such as breast and ovarian cancers and osteoporosis. (23) While this was a sign of muchneeded improvement, these measures were not as progressive as they seemed: The mandate on women's inclusion only applied to later phases of research and studies enrolling human participants, so studies at the cellular level or in the animal research phase could still be all male, an imbalance not addressed by the NIH until 2014. (24) These measures also failed to have the desired impact. Women continue to be underrepresented in medical research, (25) and even if adequately represented, the majority of studies that include women don't conduct or publish gender difference analyses. (26) Research on diseases disproportionately affecting women also remain underfunded compared to diseases that predominantly affect men. (27)

      Moreover, while it has received the most legislative attention regarding women's representation, the NIH is not the only funder of biomedical research. Most research is privately funded by pharmaceutical companies and reviewed by the U.S. Food and Drug Administration (FDA). (28) There are no federal guidelines requiring these private funders to include women in their studies and the FDA has not implemented any such requirements into its approval process. In fact, from 1977 to 1993, the FDA explicitly prohibited women "of childbearing potential" from participating in early phase drug trials, (29) which had a chilling effect on women's representation altogether; researchers were hesitant to enroll women even in later phases of research and women remain underrepresented in the majority of late phase studies. (30) The FDA still does not require representation of female cells or animals in early phase research nor gender difference analyses for late phase research. (31) As a result, women have been left out of some of the biggest and most influential medical studies in recent history, and continue to be underrepresented in biomedical research. (32) For instance, women were completely left out of the Baltimore Longitudinal Study of Aging, which purported to explore "normal human aging;" the Physician's Health Study, also known as the famous 'baby aspirin' study on the preventative effects of aspirin on heart disease; the 1982 Multiple Risk Factor Intervention Trial studying the effects of diet and exercise on heart disease; and even studies examining the effects of obesity on breast cancer. (33)

      That is not to...