E. The Operation of the Default Legal Regime
Informed consent obligations, the right to refuse unwanted medical treatment, the law of battery, and the EMTALA-mandated duty may together present an ethical bind and potential legal liability for hospitals dealing with a patient who wants to obtain or avoid care by a physician of a particular race. Hospital emergency departments serve diverse patient populations, including individuals too impoverished to obtain basic healthcare services elsewhere and individuals who require urgent medical treatment. Patients who seek treatment in hospital emergency departments are typically in poor health and vulnerable, and may be in desperate need of acute care. These individuals have few, if any, alternate venues where they can receive the type of urgent, and often life-saving, treatment offered in a hospital setting. If a patient who desires treatment will not yield in his preference for a provider of a particular race and will not agree to a transfer, then the hospital is faced with the dilemma of choosing between (1) having a physician unwanted by the patient forcibly perform the EMTALA-mandated medical screening, thereby violating informed consent and battery laws, and (2) rejecting the patient in violation of EMTALA, thereby risking liability and the chance that this decision will cause the patient to suffer, experience grievous harm, or die.
Further, hospital emergency departments operate under significant time pressures, as often the needs of individuals seeking treatment are immediate. As a result, even the delay caused by a hospital deciding between these options could result in death or in imminent, serious bodily injury to the patient and thus contravene the physician's ethical duty to provide appropriate treatment. Thus, in this legal regime, the failure to accede to patients' racial preferences presents healthcare providers with two equally vexing options, both of which carry the risk of legal sanction.
Although the accommodation of patient racial preference in the hospital setting appears to be consistent with EMTALA and medical ethics norms and practice, does this accommodation violate accepted notions of racial equality? Part III addresses this question in detail.