Recommended Reading: ‘Patients’ Racial Preferences and the Medical Culture of Accommodation’
I highly recommend Kimani Paul-Emile’s provocative article in the latest issue of the UCLA Law Review, Patients’ Racial Preferences and the Medical Culture of Accommodation, in which she “makes the counterintuitive claim … that the law does and should permit” physicians and hospitals to accommodate “patients’ racial preferences with respect to their choice of physician … in the hospital setting.” Such accommodation is, Professor Paul-Emile reports, a quiet, but routine, occurrence, one that recent studies suggest “may not only alleviate race-based health disparities but also constitute a life-saving measure for many racial-minority patients.”
Professor Paul-Emile’s article begins with a concise and helpful summary of the relevant default legal rules, in particular the right of patients to refuse medical treatment and the obligation of hospitals to provide care in an emergency. As Professor Paul-Emile explains, “[i]f a patient who desires treatment will not yield in his preference for a provider of a particular race and will not agree to a transfer, then the hospital is faced with the dilemma of choosing between (1) having a physician unwanted by the patient forcibly perform the [Emergency Medical Treatment and Active Labor Act]-mandated medical screening, thereby violating informed consent and battery laws, and (2) rejecting the patient in violation of EMTALA, thereby risking liability and the chance that this decision will cause the patient to suffer, experience grievous harm, or die.”
The article goes on to analyze hospitals’ decisions to accommodate a patient’s race-based request for a new doctor under Titles II, VI, and VII of the 1964 Civil Rights Act, and concludes that although “it is difficult to imagine preferences of this sort indulged in any other sector,” in the hospital setting such accommodation does not violate anti-discrimination laws. Professor Paul-Emile goes further, arguing that accommodation “may be one of the best available means of enforcing Title VI’s mandate to enable individuals to enjoy the benefits of a covered entity or program, regardless of race, color, or national origin” to the extent that it “counter[s] the effects of implicit bias, discrimination, and stereotyping by physicians[.]”
Professor Paul-Emile concedes that “the notion of white patients rejecting minority physicians for bigoted reasons in emergency departments and other hospital settings is deeply troubling and uncomfortably reminiscent of the type of discrimination that the civil rights statutes were designed to eliminate[,]” but she counters with empirical evidence (1) that “requests for treatment by a physician of a particular race are more often accommodated when made by racial minority patients” and (2) that the benefits of racial concordance are many, including longer visits characterized by patient-centered participatory decision-making.
Reading Professor Paul-Emile’s article, it struck me that for every patient who insists on a change of doctor, there are likely many more who assume, rightly or wrongly, that they have no choice and so endure discriminatory treatment in the hospital setting. Accommodating the demands of the few who speak up is at best a partial solution. Professor Paul-Emile does not deny this. She concludes her article with a call for an increase in the diversity of doctors and for an expansion of “cultural awareness at all levels of practice and training to enable providers to interact more effectively with various patient populations”—worthy, if daunting, goals.