C. Title VI of the Civil Rights Act
Title VI of the CRA provides that no person “shall, on the grounds of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” This law was enacted partly as a means of eradicating de jure racial segregation within and among healthcare facilities. Although Title VI is ambiguous with respect to its scope and practical applications, the statute expressly covers hospitals and targets racially discriminatory actions against actual and potential patients by healthcare institutions, including denial of healthcare benefits and services. Title VI has been a powerful force in eliminating the type of discrimination described at the outset of this Article. The law has never been interpreted as governing the accommodation of patients' racial preferences in federally funded hospitals, however, and there are several reasons to believe that this practice does not fall within the ambit of Title VI.
As a threshold matter, it must be determined who would have standing to bring suit challenging the practice. The patient who is seeking the accommodation is unlikely to challenge the hospital's decision to comply with the request. A physician who sought to challenge a hospitals' staffing decision made in response to a patient's request for physician race concordance would be required to raise her claim under Title VII because “any employment practice of any employer . . . except where a primary objective of the Federal financial assistance is to provide employment” is explicitly exempted from the scope of Title VI.
Further, the U.S. Supreme Court has rejected a private right of action to enforce Title VI's regulations prohibiting disparate impact discrimination. Hence, if a federally funded entity fails to comply with these regulations, Title VI allows only the funding agency to enforce them. However, the practice of accommodating patients' racial preferences has no disproportionate adverse effect on patients of a particular race because the practice does not deny patients the opportunity to enjoy the benefits of, or partake in the services rendered by, a federally funded hospital.
In addition, Title VI applies only to intentional discrimination and explicitly targets racially discriminatory actions by hospitals that deny patients the chance to participate in federally funded healthcare benefits and services. Even if discrimination by patients or hospitals against physicians were within the purview of Title VI, the intent behind indulging patients' requests for a physician of a particular race is not to discriminate against physicians but rather to provide optimal care to each patient. And, ironically, this practice 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.
Studies are increasingly reporting that the accommodation of patients' racial preferences with respect to their choice of physician in the hospital context may counter the effects of implicit bias, discrimination, and stereotyping by physicians, which negatively affect patient health and contribute to the widespread health disparities among racial and ethnic groups in the United States. Health disparities among racial groups are well documented, as overwhelming evidence demonstrates that racial and ethnic minorities experience poorer-quality healthcare than white Americans, even when controlling for factors such as insurance status and income. Life expectancy and infant mortality are both considered important indicators of population health and are critical gauges of access to and quality of medical care, socioeconomic conditions, maternal health, and public health practices. Although life expectancy in the United States increased during the twentieth century, the infant mortality rate for African Americans is up to three times higher than that of other races, and African American life expectancy at birth remains more than four years below that of European Americans. The mortality rate is 21 percent higher for blacks than for whites, and the age-adjusted death rate for the black population exceeds that for the white population by 47 percent for stroke (cerebrovascular disease), 30 percent for heart disease, 20 percent for cancer (malignant neoplasms), 106 percent for diabetes, and 800 percent for HIV. Researchers found that closing the black-white mortality gap would avoid an astonishing “83,000 excess deaths per year among African Americans.”
According to the Centers for Disease Control and Prevention, the rate of high blood pressure for blacks is nearly double that of whites; blacks, Hispanics, and American Indians have higher rates of HIV infection than whites, while Asians have the lowest rates of infection; and diabetes is more prevalent among blacks and Mexican Americans than whites. Race-based disparities in health outcomes are manifest across all areas of medical care and healthcare contexts.
Although many factors contribute to creating and sustaining these widespread health disparities, including social and economic influences, studies have found that implicit bias, discrimination, and stereotyping by physicians play a significant role in producing the health differentials that cleave along racial lines. Evidence shows that race has a significant independent effect on physicians' perceptions of patients. For example, a 2011 Johns Hopkins study revealed that 69 percent of medical students surveyed exhibited implicit preferences for white people. Other studies have found that physicians tend to rate African American patients more negatively than whites on a number of registers, including intelligence, compliance, and propensity to engage in high-risk health behaviors.
Physicians may convey their negative attitudes to minority patients through nonverbal cues and verbal tones or inflections, which may deter some patients from seeking care or complying with medical regimens. These negative attitudes may also shape a patient's experience of a clinical encounter with a physician. Several broad-based studies have found that minority patients perceive less respect in race-disconcordant relationships with physicians, that black Americans were almost twice as likely as their white counterparts (16 percent versus 9 percent) to report being treated with disrespect by a racially disconcordant physician, and that 15 percent of black Americans surveyed believed that they would receive better care if they were of a different race or ethnicity. Further, African American, Hispanic, and Asian patients in race-disconcordant relationships report difficulties communicating with physicians at substantially higher rates than white patients in race-discordant relationships.
Researchers have also found that bias in interpersonal aspects of the physician-patient relationship, whether conscious or unconscious, may influence physicians' clinical decisionmaking and may negatively affect treatment recommendations, including the quality and type of care administered to minority patients. In one study published in the New England Journal of Medicine, a group of physicians were shown a series of randomly assigned videos. Each depicted an actor portraying a patient and describing symptoms suggestive of cardiovascular disease. All patients were dressed identically, had identical health insurance, described their symptoms in identical terms, and presented identical diagnostic tests. Race and sex were their only distinguishing characteristics. The study found that diagnosis and treatment recommendations varied according to race and sex and that black women were least likely to be referred for diagnostic testing and treatment.
Further, a broad-based, national study conducted in 2003 by the Institute of Medicine (IOM), at the request of Congress, revealed that racial and ethnic minorities receive inferior care compared with nonminorities across a spectrum of diseases, including cancer, cardiovascular disease, HIV/AIDS, diabetes, mental health, and other chronic and infectious diseases. These treatment disparities persisted even when access-related factors, such as insurance status and income, were controlled, and even when preferences and clinical factors were considered, including state of disease presentation, comorbidities, age, and severity of disease. Subsequent research has supported the IOM's conclusions. Other studies have found that racial and ethnic minorities are less likely to undergo bypass surgery or to receive kidney dialysis or transplants, and are more likely to undergo less desirable procedures, such as lower limb amputations for diabetes. Further, physicians in hospital emergency departments prescribe fewer analgesics for black and Latino patients despite similar estimates of pain among groups. Plus, among trauma patients, race is independently associated with higher mortality.
The data thus shows that medical practice remains rife with racial bias and that minority patients often receive substandard healthcare because of physician prejudice. Meanwhile, respecting patients' requests for physician-patient race concordance offers significant benefits, particularly for racial minority patients, including greater patient satisfaction, increased access to preventative care, more effective physician-patient communication, and more participatory decisionmaking, which are all necessary aspects of effective medical treatment. Therefore, accommodating patients' racial preferences may constitute an effective means of counteracting the effects of physician bias while satisfying Title VI's aim of ensuring that all patients are able to participate in and benefit from federally funded hospitals.
Title VI adopts the strict scrutiny standard of review, according to which the covered entity must prove that its action serves a compelling governmental interest and is essential to achieving that interest (that is, the least restrictive means of realizing that interest). Although this is a high bar, improving patient care, countering racial bias, reducing race-based health disparities, and saving lives should qualify as a compelling interest that justifies bowing to patients' racial preferences. Moreover, the practice of accommodating patients' choices furthers compelling interests in improving healthcare and is narrowly tailored to achieve this interest to the extent that it applies only to those patients who are resolute in their decisions to forego necessary care if their preferences are not accommodated.