From: Plaintiff, May 2026
By: Jessica E. Berlat
“The history of women’s healthcare is a story in which women themselves have too often been voiceless—a narrative instead written from the perspective of men who styled themselves as authorities on the female of the species, yet uninformed by women’s own voices, thoughts, fears, pain and experiences. The result is a cultural and societal legacy that continues to shape the (mis)treatment and care of women.” Comen, E. (2024) All in Her Head: The Truth and Lies Early Medicine Taught Us About Women’s Bodies and Why It Matters Today. Harper Wave.
When it comes to medical care, studies demonstrate that female patients are less likely to receive aggressive treatment, preventative care, access to diagnostics, and effective pain treatment. For instance, there are studies that suggest surgeons are more likely to recommend a surgical procedure to a man than a woman with the same condition severity. Further studies show that when women express health concerns they are often not taken as seriously as men; assumed to be exaggerating symptoms and perceived as more sensitive.
Gender disparity in healthcare is not only critical research in the health care community, it should be a consideration for the workers’ compensation and civil attorney whose cases rely so heavily on medical reporting.
In a workers’ compensation case, medical providers determine and produce reports that establish early on diagnosis of injury, causation of injury (arising out of employment/course of employment), entitlement to temporary disability benefits, level of permanent disability and whether an injured worker can return to their occupation or will need to be retrained.
Medical providers play essential roles in the successful outcome of a workers’ compensation case and also any potential crossover third-party civil case. The quality of their care can have long-term consequences for an injured worker.
Medical records are one of the main pieces of evidence in a workers’ compensation and personal injury case. The strength of a claim is often resting on the quality of the medical documentation. This is especially true when it comes to the medical reporting that comes directly following an accident injury including emergency room or hospital records. Following which, you have primary treating reports and qualified medical evaluator reports/expert reports. Each type of report establishes underlying evidence in a case.
The topic of disparity in treatment has been widely discussed in the healthcare world from many prominent sources including, National Institute of Health[1], The New England Journal of Medicine.[2] Duke University[3], Harvard Medicine[4] and even hospitals like Mayo Clinic[5].
This is fascinating research attorneys should be taking into consideration in order to better align medical treaters and experts with their clients.
In 2024, an article was published entitled “Gender Differences in Medical Evaluations: Evidence from Randomly Assigned Doctors” by Marika Cabral and Marcus Dillender.[6] This article explored the gender disparities in health care and related social insurance benefits. This study collected data from Texas workers’ compensation cases. The authors state, “[o]ur estimates indicate that patient-doctor gender match increases evaluated disability and subsequent cash disability benefits for female patients but has little impact on outcomes of male patients.” What this study found was that when female applicants/patients are randomly assigned to a female doctor rather than a male doctor they are 5.2 percent more likely to be evaluated as disabled and receive 8.6 percent more subsequent care benefits on average.
The various research articles and studies provide many theories and explanations as to why these discrepancies exist. In an article published by Duke Health[7], Dr. Denise Davis, clinic professor of medicine at the University of California San Franisco and faculty physician at the San Francisco Veterans Affairs Meical Center comments, “[b]iases are not moral failings; they are habits of the mind.”
One important consideration to keep in mind is that nearly two-thirds of physicians are men. In specialties that assess physical impairments, like orthopedics, the gender imbalance is even larger. In my own practice experience, when it comes to picking experts in select specialties there are very few female practitioners in the qualified medical evaluator database, if any at all.
Gender disparity issues are not exclusive to healthcare. We see these issues in the context of education, employment, income (gender pay gap), violence, leadership, to name just a few. In the legal profession, women are significantly underrepresented in legal leadership with only a small percentage of equity partners being female. Women are underrepresented in judicial roles, with only small percentage holding judicial positions; especially senior judicial roles.
As a workers’ compensation attorney or personal injury attorney this disparity is a pervasive problem. As quoted above, “[b]iases are not moral failings; they are habits of the mind.” It goes beyond just medical treatment and healthcare; it is also present in the court room. Gender bias can shape the way an applicant or plaintiff’s allegations are misrepresented and manipulated by the defense attorney. The weaknesses in medical treatment, medical reporting, are used as a tool for defense.
This research illustrates one way in which a client can be perceived or disadvantaged, while at the same time highlight the importance of being aware of these issues as an advocate for your client. As a workers’ compensation or civil attorney, the awareness that this disparity exists is a starting place. This knowledge can be a powerful tool in selecting, when possible, the right treaters and experts in your case.
Additionally, it is important to educate your clients on the importance of being an active participant in their medical treatment to better ensure proper care.
The following practice pointers provide practical ways to overcome potential obstacles in medical treatment and reporting.
Post Injury Journal/Notes
Encourage your client to keep a detailed daily journal after an accident or injury. This can include everything a client can remember right before, during, and after the injury. This journal should, in detail, list all symptoms and body parts. The journal should keep track of things like pain levels including when the pain gets worst or what helps alleviate it. In the workers’ compensation and civil case this is especially important after an injury because the focus initially may be on the body part that sustained the most serious injury even though there are other body parts involved. It is important that all symptoms, body parts, even potential issues are included.
Prepare for Medical Appointments
Encourage clients to prepare for upcoming medical appointments. This helps a case in two ways, it ensures the medical provider is truly aware of and addressing all concerns with less likelihood of client forgetting something at the time of their appointment. It also helps highlight priorities and create a list of action items for discussion. This can be a bullet point list of concerns, symptoms, pain chart, questions, activity limitations, etc.
Obtain and Review Medical Records on a Timely Basis
Encourage clients to confirm at each visit that their provider records a detailed account of symptoms, pain, limitations, etc. Review medical records to ensure they line up with what your client reported and what they are saying to you. If there are issues in the reporting, errors or failure to report, a client must immediately request correction.
Research
An attorney practicing in workers’ compensation and personal injury should utilize medical journals and articles to familiarize themselves and become familiar with different medical diagnoses, diagnostic tools, quality providers and experts in their local area. This will help an attorney recognize early on if a client is not getting the proper care they deserve.
Advocate and Ask Questions
Encourage clients to ask questions and to push for medical treatment and care; especially diagnostic testing. Educate clients to not be afraid to ask questions of their medical provider. For instance, what the outcome of a test or procedure will be. As an attorney, when appropriate, write to the medical treater or expert in your case. Request diagnostic testing. If something is not being done, ask why that treatment is not being provided. In other words, take an active role in your client’s treatment.
In closing, we know medical providers play essential roles in not only the successful outcome of a workers’ compensation case but also in a potential crossover third-party civil case. The quality of their care can have long-term consequences for an injured worker. The research surrounding disparity in the medical field is one of many important considerations. This knowledge empowers all practitioners with yet another tool in preparation for their case. It also reminds us all how important it is for us to educate and prepare our clients to advocate for themselves.
[1] Warren, A., Garrett, K., Frame, L. (2025). Disparities in women's health and clinical considerations from a translational science perspective: a narrative review and framework for future directions. Women's Health, (London, England), 21, 17455057251399009.
[2] Bennet, J. C., (1993). Inclusion of Women in Clinical Trials—Policies for Population Subgroups. The New England Journal of Medicine, 329(4), 10.1056/NEJM199307223290428
[3] Paulsen, E., (2020, January 14), Recognizing, Addressing Unintended Gender Bias in Patient Care. Duke Health
[4] Women and pain: disparities in experience and treatment. (2017, October 9) Harvard Health Publishing. https://www.health.harvard.edu/blog/women-and-pain-disparities-in-experience-and-treatment-2017100912562.
[5] Allen, S. (2023, April 28) Working Toward Gender Equity in Women’s Health Care. Mayo Clinic Press. https://mcpress.mayoclinic.org/women-health/working-toward-gender-equity-in-womens-health-care/
[6] Cabral, M., Dillender, M. (2024). Gender Differences in Medical Evaluations: Evidence from Randomly Assigned Doctors. American Economic Review 114(2): 462-99.
[7] Paulsen, E., (2020, January 14), Recognizing, Addressing Unintended Gender Bias in Patient Care. Duke Health
