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Does Maryland’s Cap on Noneconomic Damages Discriminate Against Women

I have expressed my disdain for Maryland’s cap on non-economic damages many times on this blog. I read an interesting article in the University of Baltimore Law Forum on an issue to which I have never given much consideration: the impact of the cap on non-economic damages on women. In the article, Maryland Tort Damages: A Form of Sex-Based Discrimination 37 U. Balt. L.F. 97 (2007), University of Baltimore law professor Rebecca Korzec argues that the statutory cap on non-economic damages in Maryland, although facially neutral, has the unintended consequence that it disproportionately disadvantages women.

The essential premise is that limiting non-economic damages disproportionately affects female litigants, because women earn less, in large measure due to women spending more time on unpaid child care and taking care of the children and the house. Accordingly, limiting pain and suffering damages does not allow juries to award fair compensation. Non-economic damage caps solidify bias by rewarding economic losses over non-economic ones, intensifying the gender bias of tort law.

Moreover, Professor Korzec notes that physical injuries to women may not result in significant damages awards, because of the nature of some injuries that are specific to women. A “soccer mom” who suffers an injury requiring a hysterectomy, for example, may result in little economic harm. Accordingly, restricting or limiting her non-economic damages may result in an insignificant award of damages.

In my mind, this is one more intellectual dagger into an idea that is not logically defensible. Now it appears that non-economic damage caps are not only discriminatory towards people who are the most seriously injured, it is also discriminatory to women. Although I do not have a lot of hope, the Maryland legislature should really hold hearings on the efficacy of the cap and its impact on a small minority of injury victims that need the system’s protection more than anyone.

(I found this article in the adjunct facility office at the University of Baltimore Law School after teaching my class. I looked on-line at the University of Baltimore Law Forum’s website, but it is not yet available.)

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  • http://www.citronlegal.com Howard Citron

    Has an actual challenge like this been made and/or heard in any other states that employ caps on non-economic damages in medical malpractice claims? Certainly a thought-provoking and creative argument . . .