Oral Presentations and Performances: Session III
Project Type
Presentation
Faculty Mentor’s Full Name
Soazig LeBihan
Faculty Mentor’s Department
Philosophy
Abstract / Artist's Statement
Are the objective standards in medical malpractice law, including reasonableness and professional norms, neutral in a general manner or do they encode gendered assumptions that are disadvantageous to women in the system? Women are 66% more likely to encounter the disparity of misdiagnoses than men. One view point that is demonstrative of this question is that the negligence doctrine supposes courts avoid bias on gender and remain neutral by applying the negligence doctrine and professional norms. Through this view the very disparity of misdiagnoses in women is seen as medical failures instead of structural legal doctrine failures. In Miss Diagnosis: Gendered Injustice in Medical Malpractice Law, Cecilia Plaza argues against this view. Plaza and other feminist scholars hold that the professional norms are socially constructed by a historically androcentric culture in medicine. This view was developed well in Gender Trouble by Judith Butler, and reutilized in the debate of literature mentioned prior. The social-constructionist take argued that what is held as reasonable, in terms of diagnoses, already reflects assumptions about women's pain, emotions and even credibility to be gendered.
The neutrality view possesses strength in its ability to rely on doctrines as stable and administrative, but this poses a threat to overlooking the problems of reasonable care and norms. The feminist position indicates the existence of bias in the structure, but lacks clear guidance regarding what the courts ought to do–while maintaining authority and stability. I argue that malpractice law is not only failing to correct gendered misdiagnosis, but reproducing it as well—treating historically biased norms as an objective benchmark. Negligence is with these norms taken as standards and the gendered diagnostic patterns in these practices are sheltered from liability. Recognizing objectivity as fixed in history and not neutral is a necessary step to take in doctrinal reform. The motivation for this paper is the personal, persistent, and documented disadvantage for women in health care and analyzing the law’s role as a catalyst or resister.
Category
Social Sciences
Feminism, Misdiagnoses of Women and the Scope of Medical Negligence Doctrine
UC 333
Are the objective standards in medical malpractice law, including reasonableness and professional norms, neutral in a general manner or do they encode gendered assumptions that are disadvantageous to women in the system? Women are 66% more likely to encounter the disparity of misdiagnoses than men. One view point that is demonstrative of this question is that the negligence doctrine supposes courts avoid bias on gender and remain neutral by applying the negligence doctrine and professional norms. Through this view the very disparity of misdiagnoses in women is seen as medical failures instead of structural legal doctrine failures. In Miss Diagnosis: Gendered Injustice in Medical Malpractice Law, Cecilia Plaza argues against this view. Plaza and other feminist scholars hold that the professional norms are socially constructed by a historically androcentric culture in medicine. This view was developed well in Gender Trouble by Judith Butler, and reutilized in the debate of literature mentioned prior. The social-constructionist take argued that what is held as reasonable, in terms of diagnoses, already reflects assumptions about women's pain, emotions and even credibility to be gendered.
The neutrality view possesses strength in its ability to rely on doctrines as stable and administrative, but this poses a threat to overlooking the problems of reasonable care and norms. The feminist position indicates the existence of bias in the structure, but lacks clear guidance regarding what the courts ought to do–while maintaining authority and stability. I argue that malpractice law is not only failing to correct gendered misdiagnosis, but reproducing it as well—treating historically biased norms as an objective benchmark. Negligence is with these norms taken as standards and the gendered diagnostic patterns in these practices are sheltered from liability. Recognizing objectivity as fixed in history and not neutral is a necessary step to take in doctrinal reform. The motivation for this paper is the personal, persistent, and documented disadvantage for women in health care and analyzing the law’s role as a catalyst or resister.