Excerpted From: Maytal Gilboa, Biased But Reasonable: Bias Under the Cover of Standard of Care, 57 Georgia Law Review 489(Winter, 2023)(233 Footnotes)(Full Document)


gilboamaytalHealthcare research has shown systematic discrepancies in the level of care provided to patients belonging to different social groups. In particular, women and minorities frequently suffer from two types of judgment errors that negatively affect their care: errors resulting from knowledge gaps and errors resulting from bias. Knowledge gaps are typically discussed in relation to women's underrepresentation in medical research, which translates into clinical uncertainty as to how a disease or its symptoms manifest in female patients, leading to misdiagnoses. Recently, studies have also discussed the damaging effects of knowledge gaps on transgender patients, when healthcare providers treat patients in a way that is reasonable for either male or female patients but not necessarily for male-to-female or female-to-male transgender patients. This Article focuses on the second type of error, which derives from biased medical judgments. Biased care is the result of a cognitive process through which stereotypes affect the judgment of healthcare providers, making them perceive their patients' conditions as less severe than they are and thus recommend less intensive care than is needed.

The law of negligence is an important tool for battling unconscious bias in healthcare programs, especially in light of controversies over whether Section 1557 of the Affordable Care Act, and the antidiscrimination statutes to which it refers, create a private right of action for implicit(rather than intentional) forms of discrimination. As I discuss throughout this Article, however, negligence law currently fails to provide adequate redress for patients harmed by biased care. The reason for this is that medical providers can be held liable for breaching their duty of care only when their patients can establish by a preponderance of the evidence that the chosen treatment fell outside the professional standard of care. As this Article explains, patients harmed by biased care decisions can almost never meet this requirement.

Because the duty of care is determined according to “ordinary prudence and real-world practice,” there are often two or more courses of treatment considered medically reasonable for a particular disease or condition, some more intensive and expensive than others. As long as a healthcare provider chooses a course of treatment situated within this reasonable range of care, her conduct does not constitute a breach of duty toward her patients under current negligence law. As I discuss here, this understanding of what constitutes a breach of the duty of care opens the door to the influence of bias within the range of reasonable care, allowing healthcare providers to systematically select inferior treatments for women and minorities based on treatment decisions I define here as “biased-but-reasonable.”

Biased-but-reasonable decisions provide an affirmative defense to healthcare providers who, most likely unconsciously, choose less intensive and less expensive care for patients belonging to social groups associated with “diminishing stereotypes,” that is, stereotypes that lead healthcare providers to underestimate the seriousness of these patients' medical condition. The fact that a range of treatments may be considered medically reasonable care allows physicians to apply inferior care to women and minority patients, so long as the selected treatment remains “consistent with one or another widely accepted standard of care.” Biased-but-reasonable decisions not only result in unredressed harm to patients but also create a serious problem of underdeterrence by tolerating--and arguably vindicating--the unequal distribution of treatments within the bounds of the standard of care. Such disparities translate into discrepancies in the cost of caring for--and thus the cost of injuring--patients of different social groups.

To contend with the challenges that biased-but-reasonable decisions pose, this Article presents a three-stage analysis. First, it offers a normative framework for identifying biased treatment choices as negligent, even if they fall within the range of medically reasonable practice. Second, it confronts the evidentiary difficulties in requiring plaintiffs to prove by a preponderance of the evidence that the choice of treatment in their particular case was biased. For example, statistical evidence may show that the likelihood of being given less intensive treatment for a particular medical condition is higher for Black than White patients in a particular hospital. Yet, statistical evidence is usually insufficient to establish, by a preponderance of the evidence, the contribution of bias to the resulting harm in a particular case. Finally, to contend with this evidentiary difficulty, the Article proposes a remedial solution based on the loss of chance doctrine. In particular, it argues that this doctrine, typically invoked in the context of medical malpractice, can provide a basis for liability for biased-but-reasonable medical decisions in a manner that complies with both corrective justice and deterrence considerations.

This Article makes four important contributions. First, it identifies and names the category of biased-but-reasonable decisions, which find a safe harbor under the current law of negligence. Once exposed, biased-but-reasonable treatment choices emerge as the primary challenge for using negligence law to combat implicit bias that results in injury. While conventional application of the negligence doctrine recognizes the negligence of a healthcare provider whose injurious treatment decision falls outside the range of reasonable medical care, biased-but-reasonable cases fly below the radar of negligence law. Second, this Article provides an analysis that exposes the unique normative problems deriving from the current negligence regime that tolerates biased-but-reasonable decisions, leaving victims of biased care without redress. In particular, it reveals a severe problem of underdeterrence with respect to negligence toward minorities and women, which, in turn, creates a system of cross-subsidies, with disadvantaged patients paying the cost of defensive medicine practiced on advantaged patients. Third, this Article discusses the evidentiary challenges that biased-but-reasonable decisions entail and proposes a remedial solution that both contends with these challenges and complies with both corrective justice and deterrence considerations. Finally, by uncovering biased-but-reasonable treatment decisions and the normative and evidentiary difficulties that they pose, this Article highlights the need to investigate further and to develop the study of implicit bias in tort litigation, which is still in early stages of study as compared to fields such as criminal law and employment law.

This Article proceeds as follows. Part II describes the characteristics of judgment errors that derive from bias. It explains the cognitive process causing healthcare providers to unconsciously choose inferior treatment for patients associated with what are termed here “diminishing stereotypes.” Part III introduces the concept of biased-but-reasonable decision-making that enables biased treatment choices to escape detection and leaves patients without redress under current negligence law. Part IV then offers a solution comprising three complementary stages: It begins with a normative analysis allowing biased-but-reasonable treatment choices to be identified as negligent; continues by revealing the evidentiary challenges that biased-but-reasonable treatment choices pose for patients who seek to file negligence claims; and last, proposes a remedial tool that both creates a meaningful path for victims of biased treatment decisions to seek redress, and incentivizes healthcare providers to eliminate the risk of biased judgments. The Conclusion summarizes the discussion.

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The study of discrimination and tort law doctrine is still in early stages of development compared to other legal fields, such as employment law and criminal law. This Article zeroed in on a key element of the negligence doctrine--the requirement of proving that the defendant breached the duty of care toward the plaintiff. In a medical malpractice case, the defendant breaches the duty of care when she deviates from the range of practices the medical community considers to be medically acceptable, i.e., the standard of care. Naturally, some treatments falling within the standard of care are more intensive and costly than others. In this Article, I argued that this architecture provides a safe harbor for biased treatment choices under the cover of reasonable care.

When physicians underestimate the severity of their patients' conditions due to the influence of “diminishing stereotypes,” they may recommend less intensive treatment than is appropriate. These errors of judgment render patients who are victims of these stereotypes more susceptible to adverse medical outcomes. Yet, when several treatments are considered medically reasonable, physicians who provide inferior care as a result of implicit bias can avoid liability by showing that their treatment was within the accepted range of medical standard. This negligence regime, which tolerates biased-but-reasonable treatment decisions, may be the reason, at least in part, for observed patterns of race and gender inequities in medical treatment. The Article demonstrated that it is almost impossible under this regime to hold physicians, whose biased choices ended up harming their patients, liable in negligence, thus leaving these patients without any redress for their losses and creating a severe problem of underdeterrence.

To contend with these problems, this Article first proposed a normative analysis to identify biased treatment decisions as negligent, regardless of whether the selected treatment is medically accepted. Then, it confronted the evidentiary problem that victims of biased treatment decisions face by proposing a solution based on a probabilistic analysis and the loss of chance doctrine. While admittedly imperfect, this solution provides a balanced, much-needed, response to both the normative and evidentiary difficulties that biased-but-reasonable medical decisions pose, and thus takes an important step toward achieving equality in the application of tort law.


Assistant Professor, Bar-Ilan University Law School; Ph.D., Tel Aviv University Faculty of Law.