Structural Sex Discrimination: Why Gynecology Patients Suffer Avoidable Injuries and What the Law Can Do About It

71 Pages Posted: 23 Apr 2024 Last revised: 10 May 2024

See all articles by Christopher T. Robertson

Christopher T. Robertson

Boston University

Annabel Kupke

Boston University - School of Law

Louise P. King

Harvard University - Brigham and Women's Hospital

Date Written: May 9, 2024

Abstract

Nearly four million Americans undergo gynecological surgeries each year suffer, and many suffer avoidable lifelong, painful, and disabling injuries. This Article diagnoses the root causes and identifies legal solutions.
America’s public-private system for reimbursing healthcare pays for procedures rather than outcomes, and it pays substantially more for work on male rather than female anatomies. This disparity is due to the federal government’s reliance on a secretive industry committee to set those rates, and the committee’s reliance on junk science surveys, allowing self-interested and gender-biased responses, contrary to objective measures. As payors disvalue the bodies of those needing gynecological care, the medical profession has organized accordingly. Surgical training for Obstetrician Gynecologists (OB-GYNs) is truncated as compared to other surgical disciplines. They are incentivized to pursue a mix of better-paid work, rather than pursue the advanced training and specialized experience necessary to perform surgery consistently. Instead, most OB-GYNs may perform particular surgeries only a few times per year.  This context magnifies the risk of preventable injuries. Traditional legal approaches, under informed consent and medical malpractice laws, take for granted the fundamental economic structure that sets aggregate levels of risk. A range of laws, including a provision in the Affordable Care Act, do promise equal treatment. Close analysis, however, reveals a range of barriers to redress. Congress has made federal payment rates unreviewable by courts, even if illegal. Notwithstanding the federal government’s ironic immunity from its own laws, this Article suggests that private health insurers may be held liable for going along with the federal government’s discrimination.  Yet it remains difficult for individual patients to assert their interests in reorganizing the medical profession.

There are narrow and uncertain paths for legal accountability, but the political economy of this problem is no less daunting. Presently, overall Medicare payments are conceived as a zero-sum game, pitting patients against each other. Nonetheless, Constitutional litigation under the Equal Protection Clause may give voice to those working for the health of women in America.

Keywords: discrimination, healthcare, Medicare, insurance, medical liability, reimbursement, surgery, gynecology

JEL Classification: I13, I14, K23

Suggested Citation

Robertson, Christopher T. and Kupke, Annabel and King, Louise P., Structural Sex Discrimination: Why Gynecology Patients Suffer Avoidable Injuries and What the Law Can Do About It (May 9, 2024). Emory Law Journal, Forthcoming, Boston Univ. School of Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=4800783 or http://dx.doi.org/10.2139/ssrn.4800783

Christopher T. Robertson (Contact Author)

Boston University ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
6179100649 (Phone)
02215 (Fax)

Annabel Kupke

Boston University - School of Law ( email )

Louise P. King

Harvard University - Brigham and Women's Hospital ( email )

75 Francis St.
Boston, MA 02115
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
203
Abstract Views
1,108
Rank
307,604
PlumX Metrics