Monday, July 13, 2020

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Article Index

A. The Case for Accommodation and Its Limitations

      The case for accommodation can be understood to rest on several core empirical insights, including research showing that patients whose racial preferences are respected regarding their choice of physician show higher levels of satisfaction in their clinical encounters and that for some patients having a physician of the same racial background confers substantial health benefits. Indeed, several recent studies on the health benefits of physician-patient race concordance show that such concordance is associated with higher levels of patient-centered communication. And even after adjusting for patient age, gender, education, marital status, health status, and the length of the physician-patient relationship, researchers have found that race-concordant physician-patient relationships tend to promote more participatory decisionmaking.

      One study found that race-concordant healthcare visits are longer than disconcordant visits, and this held true even when researchers accounted for criteria associated with longer patient visits, such as older age, higher socioeconomic status, and inferior health status. The duration of a patient's visit with a provider is considered an important indicator of the quality of care, and patients report that during these longer visits they experience greater ease discussing problems and making decisions. Notably, black patients in a racially concordant relationship with their physicians are more likely to view their healthcare visits as highly participatory, to be more satisfied with their treatment, and to receive preventive care and necessary medical interventions.

      In a different study, nearly one-quarter of African Americans and one-third of Latinos reported a preference for same-race healthcare providers, and most chose racially concordant physicians because of personal preferences not solely because of reasons of geographic accessibility. Studies suggest that for these patients physician-patient race concordance not only affects the quality of the interactions but can also improve health outcomes.

      In addition to these research findings, EMTALA, medical ethics principles, and the doctrines of informed consent and battery are consistent with the accommodation of patients' racial preferences even if they do not require it. Furthermore, as I have argued, the patchwork of civil rights laws that address race discrimination cannot be read to bar this practice.

      Under these circumstances, in order to advance antidiscrimination norms meaningfully--in substance rather than just in form--I argue that we should conceptualize the issue of accommodating patients' racial preferences not in terms of the rigid application of formal antidiscrimination principles but rather through an antisubordination lens. By this I mean that we should address the negative impact that centuries of race discrimination have had on members of disadvantaged groups by allowing for the consideration of race in some circumstances rather than adopt a formalist approach that would view any consideration of race as problematic. As noted in Part II, EMTALA and the modern doctrines of battery and informed consent emerged in part to protect poor and racial-minority patients from patient dumping, nonconsensual treatment, and battery in medical practice and clinical research. Prohibiting the accommodation of patients' racial preferences in light of recent evidence of pervasive physician bias may, ironically, jeopardize the health of racial minority patients by rendering them vulnerable to the kinds of abuses against which these laws and legal doctrines were established to guard.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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