Despite this country's long and sordid history of race discrimination in healthcare, race remains of significant salience in medicine, and there are ways in which it is still being used that are neither widely discussed nor fully regulated. Although the common, if little debated, practice of physicians acceding to patients' racial preferences in the hospital setting might, at first glance, appear to perpetuate this history of inequality and violate antidiscrimination laws, as this Article makes clear, there are several important reasons why physicians quietly, but routinely, engage in this practice and why antidiscrimination laws have not been and should not be interpreted to reach this conduct.
Numerous studies show that physician-patient race concordance confers tremendous health benefits to patients, particularly those from racial minority populations, and advances antisubordination norms. Therefore, until we improve diversity within medical education and the profession, and unless we effectively educate and train a more culturally competent corps of physicians, we must preserve the practice of accommodating patients' racial preferences in the hospital setting. Indeed, although the kind of discrimination that Juliette Derricotte and John McBride faced is no longer permitted, it may be, ironically, that accommodating patients' own racial preferences within hospitals not only comports with our normative commitments to racial equality but also constitutes one of the most effective means currently available to advance racial justice in healthcare, and, quite possibly, to save patients' lives.
Kimani Paul-Emile is Associate Professor of Law at Fordham University School of Law.