Abstract

Excerpted From: Evan Zepeda, The Failure of Litigation to Challenge Racism in Health Care, 29 National Black Law Journal 77 (2024) (133 Footnotes) (Full Document)

Patient A, a 36-year-old Black woman, decided to take a final trip to visit family before her fast-approaching due date. Because of strict hospital visitation policies related to COVID-19, she wanted to see her loved ones before giving birth. Despite her history of early miscarriages due to lupus, she was overjoyed in knowing she would be a new mom in just one month. She had equal feelings of hope, anxiety, and anticipation for the birth of her first child. While visiting family, she unexpectedly went into early labor and her mother rushed her to the hospital. Both her and her mother were terrified, as she was not expected to deliver for another month. They were concerned for her health as well as the health of the baby. Because she did not have a history of care at this hospital, during her patient intake she was adamant in expressing concern to her providers of her lupus diagnosis when asked of her history of medical conditions, and that she was not due for another month. Because of the early labor, the medical staff quickly assessed the health of the fetus through an ultrasound and determined the heart rate was irregular. She was immediately rushed to the operating room, and the baby was delivered via cesarean section. The baby was taken to the NICU and Patient A remained in the hospital for monitoring. A few hours after the C-section, she called the nurse complaining of chest pain and shortness of breath. Her nurse then relayed this information to the doctor, and the doctor then responded by asking the nurse's opinion of the patient's condition. The nurse replied that the patient had been complaining a lot and proceeded to dismiss her symptoms. Patient A's symptoms continued to worsen, her chest pain grew in severity, and she became drenched in sweat. She was trembling and continued to express her concern to the nurse. The nurse returned to the room and told her that because she had just given birth, she was tired and needed to relax. The nurse quickly left to tend to other patients. Patient A cried in desperation knowing something was wrong, alone in the hospital room and ignored by her providers. A few minutes passed, and she passed out due to lack of oxygen. The medical staff took note of the alarmingly low levels of oxygen in her blood, and soon learned she was suffering from a pulmonary embolism. She was given medication to ease her symptoms, and finally received appropriate treatment for her condition.

B, a 24-year-old Black woman, went into labor while at home, and was transported to the hospital via ambulance. She was driven to the nearest hospital because she was so far along in labor, even though she planned to deliver at different hospital due to its reputation for superior care. Her labor progressed quickly, and once she arrived; the hospital staff prepared her for delivery. Because she was alone, had a lack of history of care at the hospital, and was covered by Medicaid, the doctor made assumptions about the reasons for her lack history of care and decided to order a urinary toxicology screening. He assumed that because she was Black and covered by public insurance, she was more likely to use illicit drugs. Without her knowledge or consent, Patient B was tested for drugs. She delivered a healthy boy and expected to quickly return home with him. However, the drug test results were positive for marijuana. Hospital staff prevented her from nursing her son because of these results, and she was devastated that she could not experience this bond with her new baby. The staff then tested her newborn son, and the results were negative. Despite her unconfirmed positive result, the medical staff referred her to child protective services, and they required a home visit. The caseworker traveled to her home and questioned her 9-year-old daughter about her mother's “drug use”. She was subsequently investigated and monitored by child protective services due to suspicions of child abuse. She was required to provide her medical records and in addition to contact information for her and her daughter's healthcare providers and her daughter's school. She was told that if she did not comply, she would be subjected to long-term mandatory drug testing. Because of this traumatizing experience, she was reluctant and afraid to continue to seek medical care.

Although these are not true patient stories, these incidents are not unique or uncommon. Black and brown patients disproportionately experience inadequate and lower quality care due to provider bias, and are drug tested at higher rates than white patients. Patient A should have received proper care and attention on what should have been a day filled with joy but was instead consumed by panic and fear. The medical staff should have realized she was at a greater risk for a pulmonary embolism during patient intake when she conveyed that she suffered from lupus, and they should have had an even higher suspicion of this condition when she complained of chest pain and shortness of breath, but instead her concerns were dismissed. Due to the presence of antiphospholipid antibodies, individuals with lupus increase complications such as fetal loss or miscarriage, blood clots and pulmonary emboli, in addition to other serious medical conditions.

Patient B should not have been tested for drugs, as there was no indication that there was a medical reason requiring testing. In analyzing hospital care, Black women and their newborns are 1.5 times more likely to be tested for illicit drugs as nonblack persons even though there is no difference in drug positivity rates. Leading medical organizations agree that a positive drug test is not an indicator of child abuse or neglect, and drug testing policies are not uniformly administered among patients due to bias and racism. Hospitals often do not have uniform protocols regarding testing and leave it to the discretion of the provider. This practice, known as ““test and report”, is used as an indicator of child abuse and referral to child protective services. Medical professionals and the foster system target Black and brown patients for drug testing even though there are comparable rates of drug use among people of different races. Additionally, these initial screening tests are extremely sensitive and should be confirmed with more advanced testing methods such as a forensic test. A false positive may even occur when a chemical compound that is present comes from a lawful source such as medication. Despite no apparent need for intervention, such as the newborn displaying symptoms of withdrawal, there are severe consequences that arise from these referrals to child protective services. Involvement in the child protective system may result in loss of custody, criminal prosecution, and continued surveillance. Beyond the legal consequences, patients may be discouraged from seeking medical care due to fear and distrust.

In each of these patient scenarios, racism impacted the decisions of providers in patient care and treatment because of the discretion given to medical staff in the provision of health care. Medical racism “occurs when the patient's race influences medical professionals' perceptions, treatments and/or diagnostic decisions, placing the patient at risk. Histories of medical experimentation on African Americans show the profound disregard that the medical profession has displayed for Black lives, treating people as 'clinical material”’. This medical racism becomes gendered in the medical treatment of Black women, as providers often hold negative beliefs regarding the character and value of the lives of Black women. These ideas are derived from historical narratives of Black women as “superbodies”, unworthy of human treatment. Throughout history, Black women and girls have experiences reproductive abuse and exploitation, rooted in the intersection of racial oppression and capitalism. This includes the rape of enslaved Black women as well as medical experimentation. In her book, Deirdre Cooper Owens chronicles the lives of enslaved Black women, examines the proposed justification of medical experimentation on these women, and analyzes the resulting medical racism and common-held beliefs about the patients. She explains, “During the antebellum era, most American doctors believed that Blackness was not only the hue of a person's skin but also a racial category that taught substantive lessons about the biology of race and the so-called immutability of Blackness. Following this biological theory, a Black woman could be the same species as a white woman but biologically distinct from and inferior to her.” Although racially inferior, the classification of Black women as “superbodies” proved to be a contradiction. Beliefs about Black women's strength were widely published in early medical journals; Black women endured physical violence, performed hard agricultural labor, while enduring childbirth and pregnancy, lending to the belief of physical superiority and higher pain tolerance. Ideological perceptions about womanhood directly conflict with Black women's experiences. The subordination of Black people has denied Black women access to gender norms, such the belief that women are weak or passive. The experimentation on Black enslaved women and their treatment as “clinical material” led to significant advancements in the field of gynecology, specifically surgical procedures such as cesarian sections, obstetrical fistulae repair, and ovariotomies. Black women were deemed worthy of medical care only in the sense that it provided a scientific benefit.

Although the expression of racism has changed over time in medical care, historical beliefs about Black women have continued to impact their care. Racism is currently manifested through diagnostic errors, neglect, disrespect, dismissiveness, abuse, and coercion. Differences in pain perception, stemming from the history of the medical treatment of Black women often lead to inappropriate care, as demonstrated in these patient narratives. Health care providers may “hold false beliefs about biological differences between Black and white individuals that increase implicit bias ... the presence of these beliefs causes health care providers to rate Black patients' pain lower and results in less appropriate treatment recommendations.”

This phenomenon of differential treatment is not specific to Black women in the childbirth setting even though I focus on the experiences of Black women, across care settings, Black patients receive lower quality medical treatment in relation to transplants, cardiac care, cancer care, and amputation as a result of structural racism and bias.

Racism is foundational to society, deeply impacts the health experiences and outcomes of Black patients, and is essentially a civil rights issue. Because antidiscrimination laws were precisely created to address the impact of subordination, this legal tool should be used to challenge it. The specific intent of Congress in enacting the Civil Rights Act of 1964 was to prevent discrimination and promote equality. Historically, it has been proven to be an essential tool to combat discrimination in employment, education, housing, public accommodations, and voting. The realization of civil rights in society necessitates equal access to care, independent of a patient's identity. However, due to the continued effects of racism and discrimination, this has yet to be achieved. This paper will proceed in four parts. First, I will present the framework within which racial health disparities are perpetuated and explain how racism within healthcare is shaped by conceptions of race. In Part II, I argue that although advocates for patients who experience racism in health care may litigate disparate treatment claims and possible disparate impact claims under Section 1557 of the Affordable Care Act, current civil rights doctrine does not provide a remedy for the full range of harms caused by racial discrimination in health care, and the existing civil rights framework must be amended. Prior cases in health and employment provide insight into how these claims may proceed. In Part II, I present a new framework to address these gaps in the current legal doctrine. Finally, in Part III, I explain the shortfalls and impediments to this proposed framework in addition to other possible avenues to challenge these disparities including legislation and policy efforts.

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While private action should be permitted for disparate impact claims, by modifying the current legal framework used to prove a disparate impact claim, advocates can confront implicit bias in the provision of health care, and in turn move toward the elimination of racial health disparities. Traditionally, litigants have been unable so successfully challenge implicit bias because of the need to identify a specific policy or practice as a source of the disparate impact. In eliminating this requirement and assuming the presence of bias, plaintiffs will no longer have the heavy burden of proving a specific policy or practices resulted in the disparate impact. As identified in the civil rights of health framework, population and power are critical pathways that produce health disparities, stemming from oppression and subordination. Litigation is one method to confront the racism that operates through these paths and empower litigants by recognizing their harm and providing relief.