Abstract
Nearly four million Americans undergo gynecological surgeries each year, but these procedures are unnecessarily risky, as many suffer avoidable lifelong, painful, and disabling injuries. This Article diagnoses the root cause in our legal framework for healthcare finance. It then identifies 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. OB-GYNs 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, a context shown to magnify the risk of preventable injuries.
Traditional 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. Still it will be 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 (and doctors) against each other. Nonetheless, Constitutional litigation under the Equal Protection Clause may give voice to those working for the health of women in America.
Recommended Citation
Christopher T. Robertson, Annabel Kupke & Louise P. King,
Structural Sex Discrimination: Why Gynecology Patients Suffer Avoidable Injuries and What the Law Can Do About It,
74
Emory L. J.
43
(2024).
Available at:
https://scholarlycommons.law.emory.edu/elj/vol74/iss1/2