An Insidious Oversight: The Gender-Based Treatment Disparity and Medical Malpractice

By: Ariana Aboulafia

Theoretically, medical malpractice claims generally concern “bad doctors” – those who fail or refuse to do their jobs properly, resulting in isolated instances of negligence where patients end up hurt. If this were true, then medical malpractice claims should in effect, apply to all people equally. However, various social forces such as prejudice based on race, class, and particularly gender influence the ways in which physicians treat patients. Consequently, women are disproportionately impacted by the effects of medical malpractice.

In an article for The Atlantic, Joe Fassler told a harrowing story of his wife’s misdiagnosis while in the hospital with a potentially-fatal ovarian torsion.[1]Despite her extreme agony, Fassler’s wife was dismissed by the hospital several times and as a result, forced to suffer for 14.5 hours, until her condition became critical. Although Rachel Fassler survived her bout in the emergency room, not all female patients are quite so lucky. In his article, Fassler noted that pain reported by female patients is often seen as “constructed or exaggerated” and therefore, many female patients who present with pain are often perceived as melodramatic until they can “prove that they are as sick as male patients.” [2]Fassler further notes that men in the United States wait an average of 49 minutes before receiving an analgesic for acute abdominal pain, while women wait an average of 65 minutes to receive the same treatment.

Fassler’s observations are nothingnew. The prevalence of disparategender-based treatment in the medical field has been well established since 2001, when it was expressed in a paper by Diane E. Hoffman and Anita J. Tarizan. [3]In this paper, the authors cited a study which found that, controlling for patient weight, physicians gave less pain medication after abdominal surgery to women aged 55 and over than men in the same age group, while nurses gave less pain medication to younger women.[4]A separate study conducted on patients who underwent a particular type of heart surgery concluded that male patients received a greater number of painkillers in comparison to women who received a greater number of sedatives than men, suggesting women are more likely to be perceived as “anxious” than in pain.[5]Another study conducted on a group of 42 surveyed patients with metastatic cancer found that five times the number of women than men reported that they did not receive adequate treatment for their pain. Moreover, another study of 366 AIDS patients showed that women were “significantly more likely than men to receive inadequate analgesic therapy.”

Like other tort claims, successful medical malpractice claims require a plaintiff to demonstrate four elements: (1) of a duty of care, (2) a breach of that duty, (3) but-for/proximate causation, and (4) damages.[6]Of course, there is no guarantee that each instance of gender-based treatment disparity will produce all of the necessary elements to state a sufficient medical malpractice claim. However, as “medical errors” are ranked as the third leading cause of death in the United States – with more than 250,000 Americans dying each year –a significant public health crisis is at stake.[7]More specifically, the disproportionate effects of this crisis on women are in all likelihood going completely unnoticed. As the struggle for women’s recognition and equality in so many social,[8]political,[9]and economic[10]arenas continue, let us not forget to ensure that each woman who is a part of these movements is alive to see them come to fruition.

[1]Joe Fassler, How Doctors Take Women’s Pain Less Seriously, The Atlantic(Oct. 15, 2015) https://www.theatlantic.com/health/archive/2015/10/emergency-room-wait-times-sexism/410515/?utm_source=atlfb

[2] See Hoffman & Tarizan, infra at note 3 (the authors refer to this phenomenon as “Yentl syndrome,” wherein a burden-shifting of sorts occurs and women must “prove” that they are as sick as men to receive adequate treatment from physicians).

[3]Diane E. Hoffman and Anita J. Tarzian. The Girl Who Cried Pain: A Bias Against Women in the Treatment of Pain. The Journal of Law, Medicine & Ethics28.S4 (2001): 13-27. https://journals.sagepub.com/doi/pdf/10.1111/j.1748-720X.2001.tb00037.x

[4]Id.

[5]Id.

[6]See generally, Melville v. Southward, 791 P.2d 383 (S.Ct. Colorado, 1990).

[7]Marsha Allen & Olga Pierce, Medical Errors Are No. 3 Cause of U.S. Deaths, Researchers Say. National Public Radio,(May 3, 2016) https://www.npr.org/sections/health-shots/2016/05/03/476636183/death-certificates-undercount-toll-of-medical-errors

[8]See generally,Audrey Carlson et. al., #Me Too Brought Down 201 Powerful Men. Nearly Half of Their Replacements Are Women, New York Times,(Oct. 29, 2018) https://www.nytimes.com/interactive/2018/10/23/us/metoo-replacements.html

[9]See generally, Eli Watkins, Record Number of Women Elected to the House,CNN (Nov. 9, 2018) https://www.cnn.com/2018/11/07/politics/women-house-senate/index.html

[10]See generally, The Simple Truth About the Gender Pay Gap, American Association of University Women(2018) https://www.aauw.org/research/the-simple-truth-about-the-gender-pay-gap/