I. Physicians and the Accommodation of Patients' Preferences

      In 2010, researchers at the University of Michigan Health System and colleagues at the University of Pennsylvania and the University of Rochester published an unprecedented study that received considerable attention within medical circles because it revealed one of medicine's open secrets: how physicians respond to patient requests for providers of the same gender, race, or religion. This first empirical study of the “culture of accommodation” in the hospital setting involved a survey of 127 emergency physicians from around the United States, and its results were unequivocal.

      According to the study, patients often request a physician of a race, gender, or religion different from the one assigned, and such demands are accommodated routinely. Such requests are most frequently granted when the patient is a woman, a racial minority, or a Muslim; and black, Hispanic, and Asian patients tend to believe that they receive better care from doctors of the same race. Female physicians are more likely to accede to reassignment requests, and research shows that doctors at large and academically affiliated hospitals are more likely to accommodate these requests than those at community facilities. Doctors have expressed that they feel a particular need to acquiesce to these requests in urgent situations and in circumstances in which a patient has few, if any, alternate venues for care other than the hospital setting. The findings of the University of Michigan study and other documented accounts of healthcare providers accommodating patients' racial preferences support the author's own interviews with scores of physicians working in hospitals throughout the United States. This, coupled with the fact that demand for hospital emergency services has risen steadily since 1996, suggests that the accommodation of patients' racial biases may be a widespread phenomenon.

      Although physicians are frequently called on to decide whether to accommodate patients' preferences, hospitals lack policies to address this practice. According to Rick Wade, former senior vice president of the American Hospital Association, “Hospitals do a lot of things every day to meet the special requirements of patients. They do that as long as it does not compromise the hospital's ability to deliver good medical care and does not interfere with the operation of the institution. . . . Every patient has the choice of the physician who is in control of their care, and it's up to that physician and the hospital then to assemble the team to do the job.”

      Although patients have long enjoyed the freedom to select personal physicians, and have been able to base their decisions on the physician's race, gender, or ethnicity, in the hospital setting this practice raises unique concerns. Here, the danger does not lie in the patient's own sense of the relevance of race, nor is it simply a matter of the patient exercising private preferences. Rather, the concern is that by bringing their preferences into the hospital setting and demanding accommodations, these patients are confronting healthcare providers with a difficult conflict between their professional obligation to provide nondiscriminatory care and their ethical obligations to respect patients' decisionmaking autonomy and to advance patients' medical best interests.

      In the following Parts, this Article charts a course for how we should think about the practice of accommodating patients' racial preferences both as a legal and as an ethical matter, beginning with a discussion of the significance of EMTALA, informed consent, and battery.