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Mary Crossley

Mary Crossley, Infected Judgment: Legal Responses to Physician Bias, 48 Villanova Law Review 195-303 (2003)(398 Footnotes)

Over the course of more than two decades, a physician prescribed daily insulin injections for an African-American woman with diabetes. The physician prescribed only one injection per day for the woman, despite accumulating medical evidence that two or even more injections per day would better control the diabetes. The physician did not order additional injections, though, because he was concerned that the patient would not comply with a more demanding treatment regimen. As a result of the failure to control her diabetes, the patient ultimately lost both her legs below the knee to amputation.

A woman visits a gynecologist for her annual exam. In response to the physician's questions during the exam, the woman discloses that she is a lesbian. The physician becomes visibly nervous, but completes the physical exam. He fails, however, to order the standard Papanicolaou test, perhaps believing (erroneously) that lesbians do not need the same regular gynecologic screening that heterosexual women receive.

An overweight woman consults her doctor about her inability to become pregnant. He recommends that she lose weight, so she loses twenty pounds. The doctor continues to attribute her infertility to her weight and refuses to do any tests on her or her husband to identify other possible causes of infertility. Another gynecologist whom the woman consults determines that the *196 couple's infertility is the result of the husband's low sperm count. Following artificial insemination, the woman has an unremarkable pregnancy.


I. Introduction

WHAT do these stories share in common? Each involves a situation in which a personal characteristic of a patient seeking medical advice or treatment appears to have influenced a physician's clinical treatment of the patient. In each case, the physician's medical judgment regarding what diagnostic intervention or treatment is appropriate for the patient appears to be affected, or biased, by a personal characteristic of the patient that may be irrelevant to the patient's medical needs. Physician bias based on clinically irrelevant patient characteristics and possible legal responses to biased medical decisions are the subjects of this Article.

Several negative effects may flow from the operation of bias in physicians' clinical decision making, particularly if the patient perceives the bias. In addition to stirring feelings of betrayal and injustice, the patient's perception of biased treatment recommendations will likely result in the patient's loss of trust in the physician. A patient's trust in his physician to act in the patient's best interest is an essential ingredient in the therapeutic relationship. This trust allows him to share private information that may relate to his medical needs and to rely on the physician's expert advice regarding diagnosis and treatment. Indeed, the trust may even affect the effectiveness of the treatment provided. Thus, the loss of trust in a particular clinical encounter that may result from biased medical decision making (or even the mere perception of bias) can negatively affect the physician's ability to successfully address the patient's medical needs.

The very operation of a bias that influences the physician's medical judgment may also have an adverse effect on the patient's well being. If a personal characteristic of the patient unrelated to the patient's medical needs influences the physician's choice of therapeutic intervention, then the physician's decision may reflect an inaccurate assessment of what intervention is optimal. Being biased by a clinically irrelevant trait, the physician's judgment may lead to an intervention that fails to provide the patient with her best opportunity for a good outcome--whether that be survival, cure, an accurate diagnosis or simply comfort.

*197 Physician bias in medical decision making may also have adverse impacts beyond the immediate physician-patient encounter. A perception of physician bias is not only likely to affect a patient's trust in a particular physician, but also may extend to decreased trust in the medical profession and the health care system more generally; especially if patients perceive the bias to be systemic, rather than confined to isolated individual providers. This distrust of physicians may lead patients to avoid seeking necessary medical care and may also make it more difficult for public health authorities to reach distrustful populations with health-related information. For example, it has been reported that a significant number of Black Americans believe that HIV, the virus that causes AIDS, is part of a genocidal conspiracy to kill African Americans. This perception may cause at-risk Blacks to refrain from seeking HIV-testing and cause infected Blacks not to pursue treatment options, and thus may contribute directly to Black Americans' higher mortality rates from AIDS. Thus, the adverse health impact produced by a perception of physician bias may be both broad and profound.

It should, of course, be noted that the negative effects caused by diminished trust (whether particular or general) may flow simply from a perception of physician bias, whether accurate or not. A physician's *198 suboptimal clinical choices, by contrast, result from the operation of actual bias. To assess whether the vignettes launching this Article merely reflect a problem of perception, we must examine the extant evidence regarding how often biased medical decisions occur. If doctors do not in fact make biased medical decisions, then the problem is simply one of perception. Fitting responses therefore should focus on changing an inaccurate perception, not on changing doctor's decisional processes or remedying the adverse affects of biased medical decisions.

Unfortunately, the medical and social sciences literature does not provide a definitive answer to the questions of when and how often physicians' medical decisions are biased. As discussed in Part II, it is surpassingly difficult to design a research protocol to test for the presence of physician bias in medical decisions, while controlling for all potentially confounding variables. Notwithstanding this difficulty, a variety of sources contain persuasive evidence that at least some physicians' decisions are biased some of the time. These sources include peer-reviewed studies in the medical literature evaluating disparities in treatments received by different patient populations, empirical studies of physicians' attitudes and assumptions regarding member characteristics of different patient groups and anecdotal stories. Based on a review of the cumulatively powerful evidence contained in these sources, this Article will proceed on the assumption that the clinical judgment of some physicians is sometimes influenced by patient characteristics unrelated to the patient's need for medical care. In short, biased medical decisions do occur.

If physician bias does exist and operates in some number of cases, the next question is whether any effective legal response is available to patients who are the subjects of biased medical decisions. This Article undertakes to answer that question. It will examine existing legal frameworks in the areas of both anti-discrimination law and professional liability law to assess whether a patient who has been the victim of a biased medical decision has any avenue to achieve redress.

The topic of physician bias has received some recent attention in the legal literature. In the past several years, law reviews have published a number of articles regarding racial bias in medicine. These articles reflect *199 the upwelling of interest outside the legal academy in the mounting evidence regarding the extent and pervasiveness of so-called “health disparities” in the United States between whites and racial and ethnic minorities, particularly African Americans. The catch-all phrase “health disparities” refers to a number of health-related variances between population groups--disparities in health status indicia, in health insurance coverage, in access to health care and in actual treatment received. Evidence of health disparities has captured the attention of the medical community, public health authorities, civil rights activists, the media and policymakers including the U.S. Congress. In March 2002, a panel of the Institute of Medicine issued a comprehensive report examining racial disparities, finding that racial and ethnic minorities in the United States receive lower quality medical care than whites, even when both groups have the same health insurance. Racially or ethnically biased medical decisions by individual physicians represent one relatively small piece in the health disparities puzzle, but perhaps it is more amenable to legally oriented discussion than, for example, racial disparities in life expectancy.

The legal literature's existing examinations of physician bias, however, have each focused on a particular type of bias: racial bias or in several instances, gender bias. They have not attempted an analysis of physician bias as a general problem that extends beyond bias based on race or gender. While this narrow focus may be justified by the distinctive history and nature of racial bias, or particular issues associated with gender bias, the time is ripe for exploration of physician bias as an inclusive phenomenon. Admitting the existence of a broad range of biased medical decisions may enable an understanding of the likeness of the harms that flow from the operation of physician bias; whether that bias is based on race, gender, disability, sexual orientation, age or other personal characteristics. In addition, *200 a fuller understanding of physician bias and the sufficiency of existing legal responses to physician bias can provide the necessary foundation for efforts to move forward to develop strategies to decrease the incidence of biased medical decisions and to provide patients harmed by such decisions with some avenue of redress.

Moreover, current efforts within the medical community to develop new approaches to improving the quality of medical care provided, combined with managed care's prompting of a reevaluation of the nature of a physician's professional obligations to his patient, coalesce to make this a particularly opportune time to focus on the problem of physician bias. Because biased medical care is thought of as one form of poor quality medical care, efforts to reduce the incidence of biased medical decisions may be able to piggyback onto efforts to improve medical quality by promoting evidence-based medicine and reducing variability in medical practice. Similarly, physicians' current attentiveness to the question of what duties they owe their patients may provide a “teachable moment” for focusing physicians' attention on eliminating bias as a professional obligation.

This Article will proceed in the following manner: Part II will examine the published evidence that physicians' clinical decisions are biased in some instances. This examination's purpose is not to prove exactly when and why biased decisions occur, but instead to establish that sufficient evidence of bias exists from which we can assume that at least some physicians make biased decisions. Starting with this assumption, the next logical question is whether we should care. In other words, what's wrong with biased medical decisions? Part III will describe briefly two ways in which biased medical decisions are wrong. First, biased medical decisions violate the norms of the professional and personal relationship between physician and patient. Second, they violate social norms of equality of treatment of similarly situated individuals and may help perpetuate unequal distributions of health and related social goods.

If, as asserted, biased medical decisions are somehow wrong, the question becomes whether the law provides a mechanism for responding to *201 this wrong. The remainder of the Article examines whether a patient who is the subject of a biased medical decision has any viable avenue of legal recourse. Part IV considers the possibility of imposing liability on a physician for violating professional duties and Part V examines possible responses based on federal civil rights statutes and barriers to the effectiveness of those responses. The ultimate conclusion is that neither avenue is currently likely to provide many patients complaining of physician bias with any remedy. The Article concludes in Part VI with reflections on how currents of thought in the fields of civil rights enforcement and medical care quality improvement may provide bases for continuing efforts to address the problem of physician bias.