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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.
II. Surveying the Evidence of Bias in Medical Decisions
A. Defining the Inquiry
This Part of the Article examines the evidence, primarily found in the medical literature, that suggests that a physician's choice of medical diagnosis and treatment for an individual patient may, in some cases, be influenced by patient characteristics that are unrelated to the patient's need for medical care. This evidence appears most often in studies identifying disparities in the rates of a particular intervention received by patients according to group-related characteristics such as race or gender. However, any inquiry into the meaning of group-based disparities in the rates of health services must be undertaken with awareness of the recognized pervasiveness of variations in medical practice.
Since the early 1970s health services researchers have demonstrated that the rates of various procedures vary widely by geographic location. These varying practice patterns do not reflect different rates of illness or medical need by geographic region; instead, researchers have attributed them primarily to differences in physician practice styles. In other words, the explanation is not that patients are sick differently in different regions, but that doctors in different regions treat similarly sick patients differently. On reflection, these geographic variations are perhaps not surprising; variations in the rates of services are predictable as long as medical practice is an inexact science. When the appropriate intervention for a patient is not clear, the physician exercises some discretion in making a treatment choice, and either the traits, training, background of the *202 individual physician or characteristics of the medical community can influence those choices.
Before beginning to examine the possible role of bias in medical treatment decision making, it is critical to isolate the phenomenon targeted for examination. Geographic variations research focuses on the role that geography plays in influencing treatments provided. Other physician-related characteristics, such as physician age, specialty, training and gender may also influence medical decision making and practice styles. For purposes of the present inquiry, the role of these physician-related characteristics must be distinguished from the role of patient-related characteristics in medical decision making. Differentiating between the role of physician-related characteristics and that of patient-related characteristics can be complicated. In some cases, a characteristic of the physician might correlate with a higher likelihood that the physician's medical judgment will be biased by a characteristic of the patient.
Another distinct factor that is largely extrinsic to either the physician's or the patient's makeup may also influence a physician's treatment choices. As public and private health care financing programs have increasingly incorporated managed care methodologies, many physicians practice under reimbursement systems that reward physicians financially for ordering fewer and less expensive interventions. These financial incentives are designed to influence physician practice styles and a robust literature examines the predictable conflict of interest that arises when a patient's best medical interests are contrary to the physician's financial interests.
A final characteristic that may influence a physician's decision whether and how to treat a patient is the patient's own financial ability or inability; this patient attribute, however, lies beyond this Article's focus. Although financial status is a patient characteristic that is not directly related to the patient's need for medical treatment, a decision to refuse to treat a patient who cannot pay for medical services or to limit a patient's treatment options to those for which he has the means to pay is generally *203 (though by no means universally) deemed legitimate by both the legal and medical communities. Although codes of medical ethics call upon doctors to provide charity care, they do not require a particular doctor to treat every indigent patient who seeks care; nor does the legal system generally impose on doctors the obligation to provide uncompensated care. Differential rates of health insurance coverage undoubtedly play some role in contributing to disparities in levels of care received by different population subgroups. Indeed, some evidence suggests that physicians may harbor a bias against treating “the poor” independent of particular poor patients' health insurance coverage. Nonetheless, while acknowledging the argument that poverty may represent a group-related characteristic that can engender stereotypical attitudes, the difficulty of distinguishing between the acceptable and the unacceptable influences that medical indigency may exert on medical treatment decisions leads me to exclude financial ability and insurance status from the sources of bias on which this Article focuses.
So what is left for examination? This Article's inquiry will focus on the role that patient characteristics, not related to the patient's need for medical treatment, play in influencing a physician's choice of diagnostic or therapeutic intervention. I phrase the question in general terms to emphasize that this is not an article about racist medical decision making per se (or sexist, or ageist, or ablist, or heterosexist or whatever “-ist” medical decision making). Instead, it is a broader examination of how the legal system does or could respond to cases in which a physician's medical judgment is somehow infected or biased by a non-medical characteristic of the patient.
But even with so cabined an inquiry, assessing when a patient characteristic is indeed unrelated to the patient's need for medical care may sometimes prove tricky. Group-related characteristics such as race, ethnicity or gender may not generally be related to a patient's medical needs; indeed, it has been argued that medical research that seeks to attribute particular outcomes to patient race is irrelevant to treatment choices for *204 an individual patient. By contrast, a committee of the Institute of Medicine took the stance that demographic characteristics may sometimes be reliable proxies for factors such as patient preferences or anticipated outcomes of care; in those instances, such characteristics might appear to be related to the patient's medical needs. Similarly, as psychiatrist Sally Satel asserts, “[when] certain diseases and treatment responses cluster by ethnicity, [r]ecognizing these patterns can help [doctors] diagnose disease more effectively and prescribe medications more effectively.” Crucial to the question of relatedness to a patient's medical needs is the reliability of the proxy a physician employs in making medical judgments. For example, if clinical research demonstrates that females of reproductive age consistently metabolize a drug at a faster rate than males, then female sex is related to a judgment regarding the drug's proper dosage for a female patient. By contrast, if a physician simply assumes, without scientific support, that females are better able than males to endure pain, the patient's sex should be seen as an unreliable proxy for--and thus not related to--the level of an individual patient's medical need for pain relief.
The high level of uncertainty that still permeates much of medical practice complicates the “relatedness” question. To illustrate, one study examined whether a patient's race influenced the frequency with which nephrologists diagnosed patients with end-stage renal disease as having hypertensive renal disease, as opposed to some other form of underlying kidney disease. The researchers' findings suggested that doctors may have been more likely to label African Americans' kidney disease as hypertensive than they were to give white patients a similar diagnosis, even when the patients had similar clinical histories. The researchers concluded that some nephrologists in the study appeared to use race as a diagnostic factor even though the diagnostic validity of that factor is not clear. The researchers cautioned that the use of such unvalidated diagnostic criteria *205 could produce a “self-reinforcing truth.” Clinicians employing race as a diagnostic preference may overdiagnose African Americans as having hypertensive renal disease; these diagnoses will be incorporated in epidemiological data regarding disease incidence among racial groups; these data may then be read as supporting the use of race in diagnosing kidney disease because of the high incidence of hypertensive kidney disease among African Americans. Thus, any assumption that a demographic characteristic is related to a patient's need for medical treatment should be carefully scrutinized to ascertain its scientific validity.
B. Evidence Suggesting the Operation of Physician Bias
1. Challenges of Research Design and Interpretation
Having defined the type of physician bias under examination, we move now to inspect research suggesting that these biases sometimes operate in medical treatment decisions. Before describing specific studies, however, a brief examination of the challenges inherent in effectively designing and accurately interpreting studies involving disparities in health care services is in order. First, the temptation to equate a finding of a lower rate of health services received by a particular group with discrimination against that group must be resisted. A number of possible explanations--other than discriminatory motive or biased decision making--may explain disparities in utilization. For example, if one demographic group has a higher incidence of a particular condition or tends to be afflicted with a more severe form of the condition, a higher per capita utilization rate for that group (and likewise a lower per capita rate for the less afflicted group) is to be expected.
*206 In addition, a wide array of factors may play a role in a physician's choice of intervention for a particular patient, and thus may contribute to disparities between groups. Deciding the optimal treatment in any case requires the exercise of complex judgment, taking into account the stage and severity of the patient's condition, any other conditions (or “comorbidities”) that affect the patient's baseline health status, the patient's social situation (to the extent it may affect the patient's ability to comply with or benefit from a particular therapy), the patient's values and preferences and whether a patient's insurance will cover a particular therapy. If one group of patients tends to share clinical characteristics rendering a particular treatment medically inadvisable, then that group should have lower utilization rates for the inadvisable procedure. The multifactorial nature of medical judgment challenges researchers to control for these factors in an attempt to isolate the role that a group-related, but clinically irrelevant, characteristic plays. Thus, the complex nature of medical decision making renders bias in the process difficult to prove conclusively. By the same token, it also renders bias difficult to disprove.
Isolating the role of and the implications of bias is particularly challenging when the treatment at issue is deemed discretionary, or not clearly in the patient's best medical interests. When a physician must decide between more than one possible intervention, and none of the interventions is conclusively indicated for the patient, factors that are not purely medical may be more likely to sway the physician's choice of intervention. In that circumstance, the physician may rely on factors commonly deemed legitimate, such as the patient's preferences, or he may be guided by assumptions about the patient based upon his membership in a particular *207 group. In addition, the social policy implications of biased medical decision making are less clear when discretionary treatments are involved. If medical science cannot clearly say that “x rather than y is the preferred treatment for condition z,” then it is not at all clear that providing a patient with treatment y harms the patient in any concrete sense. In other words, we should be most concerned about disparities in the rates of health services provided to specific groups when those disparities can be linked to a difference in health outcomes for members of those groups.
Thus, the value of research suggesting the operation of bias in medical decision making--at least from a policy perspective--depends on researchers' ability to link the decisions made to particular health outcomes. Patients are tangibly injured by biased decisions only if a preference for treatment y based on race (or gender, etc.) causes patients to suffer worse outcomes than if treatment x had been provided. This point is particularly relevant in combating the common assumption that when it comes to medical care, “more is better.” A higher rate of utilization of a particular procedure by members of one group (e.g., whites), as compared to members of another group (e.g., African Americans), may represent underuse of the procedure by members of the latter group. It may also, however, represent overuse of the procedure by members of the former group. *208 The disparity's appropriate characterization depends on whether the procedure at issue can be shown to improve the health outcomes of those who receive it. If not, the group receiving what some might characterize as a “lower” level of care in fact may have received better quality care because group members have not been subjected to the risks and burdens of the inappropriate therapy. In other cases, a group's high utilization rates for a procedure may suggest that group members received lower quality care prior to resorting to the procedure. For example, one study suggests that African-American Medicare beneficiaries are more likely than white beneficiaries to undergo an amputation of all or part of a lower limb resulting from complications of diabetes because African Americans are less likely to have their diabetes optimally managed in order to prevent complications. Additionally, the women's health movement has questioned the assumption that more medical care is better, particularly with respect to medicine's intervention into women's reproductive functions.
Accordingly, for a study to find meaningful evidence suggestive of physician bias in a disparity in the rates of interventions provided to different patient groups, the researchers must control or adjust for the influence that other variable factors may have on a treatment decision. *209 Otherwise, determining whether the disparity flows from bias in the decision making or from other factors is impossible. Furthermore, for the evidence of bias to stimulate any strong remedial effort, the biased decision making should be connected with either actual or probable adverse health outcomes.
Although many published studies demonstrate disparities by race or gender in the rates of particular interventions, relatively few of these studies have met both of the conditions just indicated. The purpose of many of the studies was simply to demonstrate the disparity, not to search for its causes. But even those researchers who have sought to plumb the sources of disparities encounter difficulties in adequately controlling for potentially confounding variables. One cause of this difficulty is the limited demographic information contained in the large administrative databases of patient records that many researchers draw their raw data from. These databases typically contain information provided to third-party payers, such as information obtained by Medicare as part of its claims process. The patient record will include demographic information such as the patient's age, gender, and race and medical information such as the plaintiff's primary diagnosis and all treatments billed for. The record will likely not include information about comorbidities, severity of the condition, patient preferences or social factors affecting treatment choices. As a result, some researchers have urged caution in relying too heavily on the results of research based on these administrative databases.
Despite these difficulties, a number of studies extensively control for these confounding variables and find that a group-related characteristic, unrelated to patients' need for medical treatment, persistently correlates with a disparity in treatment rates. Even the authors of these studies, however, have refrained from concluding that bias based on group membership is the clear or exclusive cause of the disparity. Instead, their *210 conclusions have been more circumspect, suggesting perhaps that the difficult to control for variable of patient preference may be at work, or that the dynamics of the physician-patient interaction need to be examined more closely. Finally, many of the researchers caution that their findings of disparity based on a group-related characteristic may not be generalizable. In other words, the appearance that something questionable is going on in the doctor-patient relationship in the 200 or 20,000 cases the researchers studied does not necessarily suggest that similar dynamics pervade medical practice more broadly. To use a medical metaphor, because some number of physicians are infected with group-based biases does not mean that the condition is epidemic or even endemic.
This subpart seeks to highlight some of the complexities in designing and interpreting research studies that address the causes and effects of disparities in health services utilization. This cautionary note is critical to the Article's purpose. If bias does indeed play a role in some medical decisions in a way that may lead to worse patient health outcomes, then the question of whether the legal system provides any effective response becomes quite pressing. By contrast, if studies are not carefully designed or are interpreted in an oversimplified fashion that misidentify physician bias as a primary contributor to harmful disparities in health care utilization rates, then parties rightfully concerned about the disparities may spend their energies barking up the wrong remedial tree and fail to identify or address the true roots of the disparity.
Unfortunately, the extant research provides no conclusive answer regarding the role that physician bias plays in producing disparate rates of *211 health services consumption. Nonetheless, the studies described in the following sections, taken together, strongly suggest that physician bias, whether conscious or subconscious, infects some number of medical decisions and are thus sufficient to compel a serious inquiry into possible legal responses.
2. Evidence of Bias Based on Race
Our review of the evidence suggesting physician bias begins with research into racial disparities because researchers' efforts have concentrated in this area. Over the past fifteen years, a burgeoning number of published articles have examined racial disparities in the receipt of health services. Many of these articles have sought simply to identify the existence and magnitude of disparities between racial groups and have not sought to isolate the causes of the disparities. As such, these articles do not suggest physician bias as the particular source of disparity over other potential sources. A number of studies, however, have attempted to control or adjust for as many clinical and nonclinical variables as possible in order to determine whether racial disparities persist. Although the results of recent studies are not entirely consistent, several of these studies do find that race continues as a determinative factor regarding the receipt *212 of health services even when adjustments are made for potentially confounding variables. This subsection will describe a handful of these recent studies strongly suggesting that some dynamic in the patient-physician interaction--possibly including physician bias--plays a significant role in contributing to disparities.
The point of this description bears emphasis. The goal is not to try and prove that medical decisions by doctors in all contexts are racially biased; that ambitious effort--if relying on existing evidence--would be doomed to failure. Instead, the description's more modest purpose is to provide a sufficient evidentiary basis for concluding that race apparently does play a role in influencing physicians' medical treatment decisions in at least some cases. That assertion, if accepted, justifies an examination of potential legal responses.
a. Disparities in Drug Therapies for HIV
In a study published in 1994, researchers from Johns Hopkins examined whether racial differences in prescribed drug use at the time of patients' presentation at an urban HIV clinic could be attributed to differences in demographic factors other than race. Specifically, the authors of the study analyzed whether patients--all of whom had been diagnosed with HIV--had been prescribed either antiretroviral therapy or prophylactic therapy for Pneumocystis carinii pneumonia (PCP), before coming to the clinic. The authors noted that the optimal use of these prescription drug therapies is clearly defined in clinical guidelines issued by public health agencies; thus, the drugs should not be seen as discretionary therapies.
The results of the authors' analysis showed that black patients were significantly less likely to have been prescribed either antiretroviral therapy or PCP prophylaxis prior to their presentation at the clinic. Upon *213 further analysis of the data, the authors concluded that neither data on the patients' insurance coverage and income, nor such behavior as injection-drug use, nor demographic (sex and age) or socioeconomic (level of education and place of residence) factors explained the racial disparities. The analysis did show that black patients were less likely than whites to have had a usual source of medical care through which they could have received appropriate drug therapy before being referred to the clinic. But, the data also indicated that even among patients who identified a usual source of care, whites were more likely than blacks to receive drug therapy. The authors suggested that the disparities might flow from barriers to the spread of medical information that affect blacks more than whites, misconceptions about HIV and AIDS that are more common among blacks and a distrust of health authorities in the black community. The authors, however, also identified a final potential barrier to appropriate care for blacks: physicians' prescribing habits. After citing to studies suggesting that race may influence a physician's treatment recommendations, the authors emphasized that no evidence-based reasons existed for racial disparities in prescribing drug therapies for persons infected with HIV. In other words, if race influenced physicians' likelihood of prescribing either antiretroviral therapy or PCP prophylaxis for patients in the study, it was not because race was medically relevant to the patients' need for the therapy.
b. Disparities in Coronary Revascularization Procedures
In a study published in 1997, a group of researchers from Duke University undertook to advance an already large body of research reporting racial disparities in the use of cardiac procedures. They examined whether clinical features of patients' heart disease could explain racial differences in the use of two cardiac procedures by patients following cardiac catheterization. The researchers analyzed the medical records of patients who had been diagnosed with cardiac disease after a cardiac catheterization, both to discover whether coronary angioplasty or bypass surgery had been used and to determine whether the patient's age, sex, insurance status or a variety of clinical factors were significant predictors of which therapy would be chosen. The analysis revealed that the severity of the patient's disease had the strongest influence on which treatment was used, with the more severe disease being more likely to be treated with bypass surgery rather than angioplasty. After adjusting the rates of usage for all *214 of the clinical and nonclinical variables employed, the researchers found that while blacks were only marginally less likely than whites to receive angioplasty, blacks were thirty-two percent less likely to undergo bypass surgery. Moreover, the racial disparity in the utilization of bypass surgery was more marked among patients with more severe disease. Finally, by conducting follow up with the patients studied, the researchers found that black patients were eighteen percent more likely to die in the five-year period following their catheterization, even after adjustment for baseline prognostic factors. Given this linkage to unfavorable outcomes, the researchers concluded that revascularization procedures may have been underused in treating black patients.
In discussing their finding that race significantly affected both the chances of receiving bypass surgery and health outcomes, the authors characterized their results as “disturbing” because they were not attributable to differences in clinical characteristics. Discussing the few remaining explanations for the racial disparity, the authors raised the possibility that the patient's or the physician's preference for one cardiac intervention over another might vary according to race and concluded that “physician-patient interactions become key to understanding practice patterns.” Thus, a study that links racial differences in utilization to less favorable health outcomes for black patients and that eliminates a variety of clinical and demographic factors as possible explanations, strongly suggests that some part of the dynamic that occurs between physician and patient acts to the disadvantage of some black patients.
c. Disparities in the Treatment of Lung Cancer
Another study also identified a clear linkage between a lower rate of surgical interventions and worse outcomes for African-American patients. Researchers engaged in a population-based study of ten thousand patients who had been diagnosed with early-stage, non-small-cell lung cancer to estimate the differences in the rates of surgical treatment of those patients. For patients whose lung cancer is diagnosed early, surgical resection*215 offers a substantial cure rate; by contrast, patients who fail to receive the intervention have a median survival of less than one year. Thus, surgical resection is clearly the optimal treatment for early-stage non-small-cell lung cancer. The study's findings revealed, however, that black patients were less likely (by 12.7 percentage points) than white patients to undergo surgical resection, even when the researchers controlled for age, sex, stage of disease, type of insurance coverage, availability of care, income and coexisting illness. Further, the researchers estimated that the difference in surgery rates resulted in significantly lower survival rates for black patients.
In discussing their research results, the authors distinguished this study from others that demonstrated variations in practice patterns. Unlike the therapies considered in many other studies, surgical resection of early-stage non-small-cell lung cancer is not discretionary--instead it is unambiguously the optimal therapy. The researchers disclaimed any ability to explain why blacks received lower rates of resection, but identified as possible explanations racial differences in patient preferences or physicians' failure to offer black patients the optimal treatment as frequently as it is offered to whites. Again, while this study does not prove that physician bias accounted for the differential rate of surgeries for black patients, by disproving the role of a number of other clinical and nonclinical factors, it leaves physician bias as one of the few remaining possible explanations.
d. Disparities in Pain Relief Practices
A study published in 2000 describes how African-American patients in a hospital's emergency department (ED) were less likely than white patients to receive medications for pain relief. The researchers conducted *216 a record review for all black and white patients that presented with isolated long-bone fractures at the urban hospital's ED over a forty-month time period. They used a multiple logistic regression to establish race's independent effect on analgesic use, while controlling for variables including time since injury, time in the ED, shift of presentation, need for fracture reduction and payer status. After controlling for these variables, the researchers found that black patients were more likely than whites to receive no analgesia for pain relief in the ED.
In discussing their results, which were similar to those produced by an earlier study comparing the rates of analgesic administration to white and Hispanic patients, the authors discounted the possibility that the differences in pain medication ordered could have resulted either from racial differences in the pain experienced by patients or from racial differences in the assessment of the pain by health professionals. Instead, the researchers indicated that their findings suggested that patient race affected physicians' decisions to administer analgesics independently of any clinical criteria. In two editorials accompanying the study, emergency physicians noted the existence of potentially confounding covariables that the study had not controlled for. The editorialists, nonetheless, emphasized the need not only to conduct further studies on the existence and causes of racial and ethnic disparities in pain management, but to confront and respond to the real possibility that physician bias contributes to the disparities, particularly in light of other studies with similar results.
e. Disparities in Treatment for Stroke
Most recently, researchers have reported that black patients who have suffered a stroke are significantly less likely than white patients to receive *217 tissue-type plasminogen activator (tPA) (an effective therapy for ischemic stroke if it is initiated within three hours of the onset of stroke symptoms). Although tPA is a relatively new therapy, published consensus guidelines recommend its use, and the authors of the study describe it as the “first proven therapy for acute ischemic stroke.” The researchers examined the medical records of patients admitted for ischemic stroke at forty-two academic medical centers, comparing the rates of tPA use for white patients and African-American patients. When the researchers limited their analysis to patients who were candidates for tPA (i.e., those patients who had arrived at the hospital within three hours of symptom onset and who did not have any other contraindication to tPA use), they found that black tPA candidates were only about one third as likely to receive tPA as white candidates, even after adjusting for age, gender, insurance status and stroke severity.
After noting that the magnitude of the disparity found in the study was quite large in comparison to documented racial disparities for other procedures, the researchers considered possible explanations. They indicated that neither the failure of blacks to seek medical care quickly nor ethnic differences in stroke etiology or severity appeared to explain the disparity in tPA usage. They considered the possibility that blacks' greater distrust of the medical system and lack of confidence in treatment recommendations could contribute to the disparity, but noted that no black patients in the study had been documented as declining offered tPA treatment. Finally, the researchers considered the possibility that biases based on ethnicity and socioeconomic status explained the disparities. While calling for more detailed analyses of factors leading to treatment and acknowledging their inability to definitively identify racism as the primary cause of the disparity, the researchers concluded that racism likely contributed to the disparity in tPA treatment for ischemic stroke and called on practitioners to “carefully examine their own motivations when withholding this proven therapy.”
*218 3. How Might Race Play a Role in Treatment Decisions?
Taken together, the foregoing studies--along with other studies documenting racial disparities in the use of therapeutic interventions --suggest that doctors, as a group, may be less likely to provide black patients than white patients with aggressive therapies for life-threatening conditions, effective preventive care and effective pain relief. These differences cannot be explained away by clinical or nonclinical factors independent of the patient's race. Thus, we are left to confront the inevitable conclusion that a patient's race may play some role in a physician's decision of what therapeutic intervention to provide.
I hasten to interject that by asserting that race plays some role in medical decision making, I am not asserting that physicians in the U.S. are bigoted or malevolent racists who believe that African-American patients should receive a lower level of care than whites. While it is certainly plausible that cases of conscious, deliberate decisions to treat blacks less favorably than whites occur in medical practice (as they do in other settings), it seems far more likely that a patient's race influences treatment decisions in a more subtle, less overt fashion. One possible explanation is that physicians may unconsciously employ race-based assumptions or stereotypes in making judgments regarding therapeutic options.
The subject of how physicians make decisions and the possible operation of stereotypes has been examined far less often than the existence of racial disparities in utilization rates. Some evidence, however, exists that begins to suggest how patient race may affect physicians' perceptions *219 about patients. For example, one recent study examines how patient race and socioeconomic status affect physician beliefs about patient personal and psychosocial traits, patient behavior and patient role demands. The researchers used survey data to examine these effects during encounters between physicians and patients following an angiogram. After controlling for a number of physician characteristics and patient characteristics such as patient age, sex, frailty and social assertiveness, the researchers found that the survey results indicated that physicians tended to perceive black and lower socioeconomic patients more negatively on a number of levels. With respect to race, physicians were more likely to view black patients as being at risk for substance abuse and for noncompliance with cardiac rehabilitation and as having inadequate social support. Physicians were also less likely to report feelings of personal affiliation with black patients and judged black patients to be less intelligent than white patients, even when patient age, sex, income and education were controlled for.
In discussing their results, the researchers considered the possibility that physicians' perceptions were simply accurate observations of individual patient differences that, when aggregated, resulted in group differences. They rejected this possibility as a complete explanation because physicians rated black patients as less educated than white patients, when in fact the two groups were similarly educated. The alternative explanation offered by the researchers was that physicians incorporated epidemiologic evidence regarding population-based likelihoods into their general belief systems. Even though patient-specific information disconfirmed the *220 likelihoods, the physicians applied them to individual patients. In this fashion, epidemiologic information could effectively function as stereotypes and bias the way that physicians processed information about individual patients. The authors identified these differences in perceptions and feelings of affiliation as possible explanations for the racial treatment disparities documented in the medical literature.
A number of commentators have also suggested that physicians may unconsciously employ racial stereotypes or race-based assumptions in clinical decision making and thereby contribute to racial disparities in receipt of health services. Marian Gornick, who has extensively studied disparities among Medicare beneficiaries, describes how physician perceptions may operate to influence treatment choices:
[T]he course of treatment physicians . . . recommend to their patients may be influenced by stereotypical beliefs about the behavior of their patients. Physicians . . . may believe that poor and minority patients are more likely to break appointments and to misunderstand complex information, and less likely to adhere to their orders. These perceptions may affect--perhaps subconsciously--the decision-making process and lead physicians to refrain from orders that require patient compliance and to hesitate before recommending certain procedures if they assume the patient*221 does not live in an environment that is conducive to the aftercare needed for the best outcomes of the procedure . . . . Other commentators have described the operation of racial bias as “subtle” or “nuanced” and not perceived by the physician.
Although patients' preferences for therapies that are less aggressive, less expensive or more “tried and true” is always a potential (though extremely difficult to document) explanation of treatment disparities, a particular aspect of the oft-cited preference of black patients for less aggressive or less risky therapies bears noting at this point. It is conventional wisdom now that African Americans, as a group, have a higher than average level of distrust towards doctors. This distrust is typically traced to a history of racist medical practices in the United States. Although the history of segregated and racially discriminatory medical research and treatment practices both pre- and post-dates it, the Tuskegee Syphilis Study-- in which the U.S. Public Health Service sponsored research over four decades that examined the progression of untreated syphilis in poor black men in Alabama--is often cited as the paradigmatic example of racist medicine. Although many aspects of the study are disturbing, two of the most egregiously unethical facts are that the researchers never obtained any kind of informed consent from the black men infected with *222 syphilis to be part of the research, and as effective treatments for syphilis were developed, the researchers deprived participants of those treatments.
In light of the history of institutionalized racism in American medicine and the Tuskegee study in particular, it is hardly surprising that black Americans may be wary of treatment recommendations made by doctors and suspect that the health care establishment is pursuing goals other than the black patient's best interests. Indeed, some studies indicate that blacks may be less likely than whites to consent to some aggressive therapies. Based on this evidence and perhaps their own practice experience, “clinicians may believe that whites are more likely than blacks to prefer intensive medical treatment or surgical therapy” and consequently may be less likely to offer black patients aggressive therapy. Thus, the history of racial abuses in American medicine may have had the effect of putting into motion a vicious cycle: The history of discrimination causes blacks, as a group, to distrust white doctors; because blacks distrust doctors, they are generally more likely to decline aggressive or risky medical treatment; since blacks as a group are more likely to decline aggressive treatments, doctors (employing stereotypes) assume that individual black patients will prefer less aggressive treatment; and because doctors make this assumption, they are less likely to offer aggressive treatment to their black patients.
This scenario, if accurate, raises thorny questions about the appropriate response by medical practitioners. Does a physician treating black patients satisfy her ethical and legal obligations simply by making sure that she makes decisions for each patient solely on the basis of that patient's individual needs and that patient's medical information, without employing assumptions or stereotypes? If so, that physician's treatment recommendations will be unbiased, but resulting treatment patterns may still reflect some residual racial disparity because of the greater tendency of blacks, as a group, to decline aggressive treatments. The residual disparity could be characterized as reflecting patient preferences, a characterization that would allow the disparity (and any resulting adverse health outcomes) to be deemed acceptable out of respect for patient autonomy, and not the product of inequitable or biased medical judgments. Surely this complacent *223 conclusion cannot end the analysis, for the patients' preferences themselves are the product of African Americans' experiences of racist medicine. Thus, the question would become whether medicine needs to go beyond cleansing clinical decision making of all hints of bias, and additionally whether it needs to take affirmative steps to re-assure black patients of physicians' trustworthiness in an attempt to mold the patients' preferences. While possible legal remedies for biased decisions will be discussed below, this question of American medicine's moral obligation to make amends for past discrimination ties intimately into an assessment of how race plays a role in physicians' medical treatment choices.
4. Evidence of Bias based on Gender
When our attention shifts to sex-based differences in health services utilization, the evidence of disparities is less voluminous and the challenge of isolating bias as a cause of the disparities is more challenging. Some research into the existence of sex-based disparities in utilization has found either that no disparity exists or that the disparity exists only in limited areas. Moreover, other research suggests that sex-related disparities in treatment may sometimes reflect more appropriate care for women than men. Nonetheless, the cumulative evidence of disparities raises serious concerns that gender bias sometimes may lead to potentially harmful treatment differentials, in the form of either more or less frequent interventions for women.
One difficulty in assessing the meaning of sex-based disparities lies in determining when disparities in health care usage reflect sex-based differences *224 in medical needs. Unlike race, which is increasingly recognized as being a social construct rather than a biological fact, biological differences do exist between the sexes. These biological differences lead to differences between the sexes in disease incidence, disease manifestation and effective disease treatment, and consequently play some role in contributing to differences in the diagnostic and therapeutic interventions provided to men and women. Indeed, one criticism that women's health advocates level at the medical establishment is that medical research historically has failed to include women as subjects. As a result, there is a dearth of scientifically validated knowledge about sex differences and their clinical implications. Because researchers excluded women, and particularly pregnant women, from research into a variety of conditions, doctors often do not know whether the findings from male-subject research are equally applicable to their women patients. This knowledge gap may force practitioners either to treat women as if they were men (which should not lead to disparities in use, but in some cases may be ineffective or dangerous because of biological differences) or to treat women differently based on their un-validated assumptions about sex differences (which would lead to disparities in usage, but still may not be effective care if the physician's assumptions are inaccurate).
Despite these complexities in determining which disparities in medical care utilization flow from biological differences in women patients and which flow from other causes, some research suggests that gender bias plays a role in producing some utilization disparities between women and *225 men. Before reviewing this evidence, however, a few broad distinctions regarding gender differences in health care utilization, as compared to racial differences, bear noting. The research shows that--in broad terms--utilization of health care services by African Americans lags behind that of whites with respect to most services, including primary care, preventive care and therapeutic interventions for treating acute and chronic illnesses such as cancer, heart disease and HIV/AIDS. Blacks, however, are more likely to be treated for preventable conditions and to be hospitalized for treatment of a condition (both measures indicate receipt of less than optimal levels of preventive or primary care). By contrast, women have been shown generally to consume more health care services than men, in terms of visits to doctors, laboratory tests and number of prescriptions written.
Thus, in many instances, sex-related disparities in health care services tilt in favor of women receiving more care than men. With respect to treatment of certain conditions including heart disease, renal disease and lung cancer, however, studies have shown women to receive fewer interventions. In addition, one study finds that, among patients with advanced illness, women (or their proxy decision makers) are twice as likely as men (or their proxies) to perceive that their doctor had recommended only “comfort care,” as opposed to more aggressive treatment of their illness. But “comfort care” should not be confused with appropriate pain relief. Data from a number of studies indicate that women's complaints of pain are more likely to be discounted by health care providers and less likely to be treated adequately. Thus, in examining the evidence of possible gender bias in the receipt of health care services, it is particularly vital to remain attuned to the fact that more medical care is not always better *226 care and to focus on the appropriateness of care provided by seeking to link differences in the receipt of care to actual or probable differences in outcome.
That said, let us briefly examine several areas in which studies have documented gender disparities in receipt of health services and have suggested that physician bias plays a role. Again, while the published literature is far more extensive than the findings described here, I chose the following two examples of disparity as particularly illustrative and suggestive of bias.
a. Disparities in Physician-Prescribed Activity Restrictions
The first example of disparity does not involve women utilizing a procedure at a lower rate than men, but instead involves women being prescribed a particular intervention more often than men. In a study published in 1997, a team of researchers tried to identify the underlying reasons for physicians' more frequent imposition of activity restrictions on women than men. In their study, the researchers found that--even when controlling for differences in patients' socio-demographic characteristics, health profile, main role responsibilities, patient illness behaviors and physician characteristics--the odds of a physician directing a woman to restrict her activity was 3.6 times higher than for a man.
The researchers explored four competing hypotheses seeking to explain gender differences in medical care to determine whether any of the hypotheses could account for the study findings. The researchers concluded *227 that neither differences in the health profiles of the men and women patients nor their role responsibilities could explain the difference in rates of activity restrictions, but that both gender differences in illness behavior and physician gender bias appeared to contribute to the differential. The authors interpreted their findings that a larger differential existed among patients of male, older and subspecialist physicians as particularly suggestive of a role for attitudinal biases, and then explained how gender bias might operate in this context:
[A] societally based view of women as weaker and more vulnerable than men could incline physicians who have consciously or unconsciously adopted this view to advise activity restrictions for female patients more readily than for males. A devaluation of female role responsibilities might also make physicians less concerned about advising temporary activity suspension . . . . Attitudinal biases such as these may subtly and unconsciously influence physicians' perceptions of patients' preferences . . . . Thus, the authors concluded that their findings suggested that physicians' attitudinal biases influenced how the physicians interpreted patients' illness behaviors.
b. Disparities in Cardiac Care
Differences in the rates at which physicians have provided diagnostic and therapeutic interventions relating to heart disease for women, as compared to men, have been under study since the mid-1980s and disparity *228 in cardiac care appears to represent the single most closely examined area of sex-related disparities. Although the evidence here is inconclusive regarding the frequency and pervasiveness of disparities and their causes, recent studies have identified sex-related disparities in cardiac care and have suggested a possible role for physician bias in contributing to those disparities.
In a recently published study, researchers examined the rates at which men and women diagnosed with coronary artery disease were provided with lipid-lowering therapy (LLT) for high cholesterol. The researchers found overall a low rate of LLT among study participants, but found that “[t]he overall reduced rates of therapy were particularly noteworthy in women,” despite similar baseline and arteriographic characteristics. Moreover, the research showed that significantly fewer women than men in the study succeeded in lowering their cholesterol levels. The researchers concluded that their results “provide evidence of considerable sex bias at academic medical centers in the United States and Canada.”
Another study demonstrates an apparent interaction between gender and race in influencing physician decisions regarding cardiac care. Researchers in a widely publicized and controversial study used video recordings of actors portraying patients complaining of chest pain in a medical interview setting in order to assess physicians' recommendations for managing the chest pain. The researchers found that the hypothetical patients *229 (who all had identical histories, read their scripts verbatim and were directed to express a consistent range of emotions in their presentation) who were black women received referrals for cardiac catheterizations at a lower rate than white male patients, black male patients or white female patients. In discussing their results, the researchers characterized their findings as suggesting that “a patient's race and sex [or, more precisely, the combination of race and sex] may influence a physician's recommendation with respect to cardiac catheterization regardless of the patient's clinical characteristics,” but speculated that any bias was more likely to be the product of physicians' “subconscious perceptions rather than deliberate actions or thoughts.”
c. What to Make of the Disparities: Does Gender Play a Role?
A statement made by the AMA's Council on Ethical and Judicial Affairs in 1991 still rings true today: “Available data do not conclusively demonstrate a connection between gender bias and gender disparities in the provision of health care. Designing a study that can control for the myriad social, economic, and cultural factors that might influence decision making in a clinical context has proved extraordinarily difficult.” Despite the lack of conclusive evidence, however, the suggestion of gender bias in clinical decision making is quite compelling and cannot be ignored. As with race, I do not suggest that all doctors are sexist and misogynist and deliberately provide different and less effective care for women. Instead, as with race, any bias is far more likely to be subconscious and unperceived by the practitioner, and is likely to be present in some providers but not in others. The effects of allowing patient gender (when gender is not related to medical need) to influence treatment decision making are real, however, and may operate to the detriment of either women or men. While the operation of subconscious gender bias seems likely to mimic that of unconscious race bias, researchers in this area have proposed that two factors may be particularly likely to interact in the context of treatment decisions for women.
*230 First, as noted above, because women were historically left out of medical research, physicians treating women for many conditions have less scientifically based guidance than they do for their male patients. Thus, unless a physician simply assumes that findings from male-subject research are equally applicable to female patients, the physician is left to exercise his best judgment with respect to treatment of his female patients. In other words, because of the paucity of scientifically valid research regarding females with a variety of conditions, the treatment of female patients is more likely to be discretionary. And, as noted above in the discussion of racial disparities, situations in which treatment choices are discretionary or diagnostic determinations are uncertain create greater opportunities for a physician's own subjective perceptions or societal stereotypes to influence the decision made.
Second, there is no shortage of fairly consistent social stereotypes pertaining to women. Although women have made huge strides in the past four decades towards achieving greater equality and eroding gender-based stereotypes regarding their “place,” gender-based norms and expectations persist quite robustly in American society. In the medical community, these expectations may be embodied in physicians' assumptions that women are less likely to choose aggressive interventions, assumptions that women are less likely to have demanding social or career roles, attributions of women's physical complaints to emotional or mental causes and devaluations of women's contributions to society. Each of these gender-based stereotypes could infect a physician's judgment regarding a female patient's diagnosis and her optimal treatment. While doctors are probably unlikely to flatly deny a female patient an aggressive and potentially effective therapy that she actively seeks, the physician's counseling of the patient to follow the course that the physician believes is in the patient's *231 best interest could easily provide the vehicle through which the bias operates.
5. Evidence of Other Biases
In addition to evidence strongly suggesting the existence of race and gender bias in clinical decision making, some (albeit much sparser) evidence exists indicating that other patient characteristics unrelated to a patient's medical need--such as age, sexual orientation, disability or obesity--may influence physicians' treatment decisions. This subpart will briefly describe some of this evidence in order to reinforce the concept that physician bias is not monolithic, but instead can wear many faces and present varying issues as the nature of the bias varies.
For example, a number of studies indicate that older patients are less likely to receive aggressive medical care than younger patients, even after controlling for the severity of the patients' illness. This age-based disparity appears particularly strong in the context of aggressive treatments for advanced illness. One study found that among seriously ill, hospitalized adults, older patients were more likely than younger patients to have treatments such as surgery, dialysis and ventilator support withheld, even after adjusting for patients' preferences for life-extending care. Another study found that patients over the age of seventy (or their proxy decision makers) were almost four times more likely than younger patients to believe that their doctor had recommended only comfort care for them, rather than life-sustaining treatment. Yet another study suggests a patient's advanced age would not by itself bias a doctor's treatment decision for a patient who had been functioning well mentally and physically before the onset of an illness, but that an older patient with pre-illness disabilities would likely be treated less aggressively than a younger patient with the same illness and similar pre-illness disabilities. Similarly, a survey of physicians who were questioned regarding their agreement with treatment choices for hypothetical patients revealed that a significant proportion of the respondents concurred in judgments to treat an older patient *232 less aggressively than a younger patient, even when those patients' likelihoods of survival were identical.
Researchers have advanced several possible explanations for these age-related differences in care. One team suggests that physicians may recommend less aggressive treatment for older patients based on an erroneous belief that older patients are more likely to suffer poor outcomes or are less likely to benefit from aggressive treatment; this team, however, also recognizes the alternative possibility that the differences in care may reflect “a covert, and perhaps unintentional form of health care rationing.” Other researchers point to the possibility of “ageism, or discrimination based on chronological age” and suggest that this bias may reflect either society's values or the physician's own personal values and preferences. Bolstering these suggestions are attitudinal surveys demonstrating that physicians subjectively associate “old age” with sickness and inactivity and indicating that students in their first year of medical training have already formed negative impressions about older patients and how aggressively they should be treated.
What is perhaps most distinctive about apparent age-based bias in medical decision making is that some commentators view patient age--unlike patient race or gender--as a potentially legitimate consideration in making health care treatment decisions, even when age is unrelated to the individual patient's medical need or prognosis. Several scholars have argued that advanced age is a legitimate moral basis for rationing health care resources. Others have responded that chronological age is an unjust and arbitrary basis for allocating resources. It should be noted, however, that most proponents of age-based rationing argue for the adoption of explicit social policies implementing such a scheme; they do not advocate that individual physicians should covertly seek to ration care through their treatment decisions for older patients. Nonetheless, the unresolved *233 debate regarding age-based rationing highlights the complexity of the issues that age bias raises and suggests that physicians' choices of less aggressive care for elderly patients may reflect their personal belief in the legitimacy of age-based rationing.
A patient's sexual orientation may also bias a physician's medical judgment. Homosexuality remains socially stigmatized, and evidence suggests that some physicians share commonly held negative attitudes towards gay men and lesbians. Surveys indicate that many physicians feel uncomfortable treating gay men and lesbians and may even view homosexuality as an illness. These negative attitudes may bias a doctor's medical decisions so that a patient's sexual orientation influences the treatment provided even when sexual orientation is unrelated to the patient's medical needs. A 1994 study polled the membership of the American Association of Physicians for Human Rights (today called the Gay and Lesbian Medical Association) regarding how sexual orientation affects patients and doctors. Almost two-thirds of the physician respondents thought that a patient who disclosed his or her homosexuality to a doctor risked receiving substandard treatment, and about half had witnessed their colleagues (other physicians) providing reduced care or denying care to gay or lesbian patients. A patient's sexual orientation may influence a physician's clinical judgment not only by making the physician less willing to pursue aggressive treatment on the patient's behalf, but also by leading the physician to focus inappropriately on the patient's sexuality, thus interpreting the patient's problems in sexual terms rather than considering a full range of diagnoses.
Out of concern for the perceived likelihood of disapproval and substandard treatment, many lesbians and gay men are reluctant to disclose their sexual orientation to their physicians. Herein lies an important distinction between bias based on gender, race or advanced age and bias based on sexual orientation. Because a patient's sexual orientation may not typically be a trait that is readily visible, patients must decide whether to divulge their sexual orientation to their physician and risk receiving *234 biased treatment. This fear regarding the consequences of disclosure appears to lead many gays and lesbians to respond in one of two ways, each of which may be quite detrimental to their health. Some may seek medical care but remain silent regarding their sexual orientation. While this silence may prevent a physician from inappropriately considering the patient's sexuality in exercising medical judgment, it also precludes the physician from considering the patient's sexual orientation in an appropriate (i.e., a medical-needs-related) fashion. Gay men and lesbians do have certain health needs that differ from those of the heterosexual population. A physician who simply assumes that all her patients are heterosexual unless the patient discloses otherwise may thus “misdiagnose conditions, provide inadequate treatment, offer irrelevant health teaching, lecture needlessly about birth control, ask insensitive or biased questions, and make sexist remarks.”
The other way that gay men and lesbian women may try to avoid biased treatment is to avoid medical care altogether. For example, one study showed that almost half of lesbians rarely or never visited a gynecologist. Gay men may also be less likely to seek preventive care than their heterosexual counterparts. Thus, when we examine the problem of sexual orientation bias in medical care, we see that physician bias (particularly the more overt, expressed sentiments of disapproval and hostility that gay men and lesbians may face) can be pernicious for the subjects of the bias not only when the bias operates to corrupt medical judgment, but also when the subjects of the bias seek to avoid its operation. Effectively, the potential for bias can function as a barrier to accessing effective care for gay men and lesbians.
Two remaining patient characteristics that may influence medical decision making beyond any clinical relevance of the characteristic are patient disability and patient obesity. Although some evidence suggests that the process of medical education may improve students' attitudes towards persons with disabilities, physicians at times still tend to focus their attention *235 on a patient's disability, rather than addressing her health needs more generally. In addition, the well-publicized case of Sandra Jensen illustrates that physicians may be reluctant to pursue aggressive medical treatment for some persons with disabilities. Physicians at two academic medical centers in California initially refused to place Sandra Jensen on a waiting list for a heart and lung transplant because they believed that a person with Down syndrome would not be able to comply with the rigorous post-transplantation regimen. Thus, physicians may allow the mere existence of a disability to influence their medical judgment without examining how the individual patient's disability affects her actual medical needs.
As with physical and mental disabilities, obesity is a patient characteristic with potential health consequences that a physician may need to consider in order to address appropriately a patient's medical needs. Evidence suggests, however, that obesity in a patient may also stimulate strongly negative and judgmental reactions from physicians, just as it may from members of the general public. One result of such openly biased behavior is that obese persons, like gay men and lesbians, may be reluctant to seek medical treatment. Beyond overt and conscious negative reactions to patients who are obese, however, physicians may also subconsciously incorporate negative social stereotypes regarding obesity into their medical decisions. A physician recently reflected in The New York Times on the possibility that his treatment of a patient with heart disease had been influenced by the patient's obesity. His words reflect the struggle involved in recognizing “camouflaged” bias:
*236 It did not appear that our prejudice, if it existed, had been conscious. Granted, the patient's obesity had been on our minds in deciding on his treatment. But had we been hypersensitive about his obesity, to his detriment? Had we made a value judgment that because of his weight, surgery would be wasted? Or worse, that he was somehow less deserving of surgery because he was unable or unwilling to control his weight? These words provide a fitting conclusion to our survey of the evidence regarding various forms of physician bias in medical practice. They begin to suggest the variety of ways that a characteristic of a patient may influence a physician's medical judgment beyond the characteristic's relevance to the patient's medical needs. The following section will consider what to make of the evidence that has been surveyed.
C. Is this a Problem that Needs Fixing?
Admittedly, none of the research just surveyed finds conclusively that physician bias is a cause of the numerous documented disparities in the levels of health care services received by members of minority groups or that a patient's gender, age, sexual orientation or other characteristic influences physicians' clinical decision making in any statistically significant way. Nonetheless, the growing number of studies that control or adjust for other possible factors that might explain disparities, combined with the studies of patients' perceptions of bias and anecdotal accounts of apparently biased treatments, collectively leave a firm impression that patient characteristics do indeed influence some significant number of medical decisions beyond any role that the characteristics' medical relevance might justify.
In some ways, this conclusion is anything but surprising. Assumptions and stereotypes based on race, gender, age and other characteristics remain powerful ingredients in today's society, and individuals' (often) unwitting reliance on prejudices and stereotypes in managing information and making decisions is a common human experience. In other words, the “stereotypic expectancies” that have been unconsciously incorporated in a decision maker's general belief system can bias how the decision maker interprets information received, and the part played by bias is likely greater when the information processed is ambiguous. Having been observed in a variety of fields and professions, bias and its effect on decision *237 making are pervasive in human enterprise. Why would we expect that physicians should be immune to this phenomenon any more than other humans?
One might surmise that physicians should be and are less likely than members of other professions or the general population to be influenced by group-based bias. Since physicians are highly educated and trained in the sciences, with a premium placed on objectivity, one could speculate that they might self-consciously strive for objectivity and factual bases for their diagnostic and treatment decisions. Likewise, because physicians' professional ethic directs them to focus on their patients as individuals and to be loyal to their patients' well being, we might hope that physicians as a group are more scrupulous than most people in examining their own motives in making decisions.
Other factors, however, weigh against a conclusion that physicians are less likely to allow bias to infect their judgments. The chance that bias will creep into a decision increases as the decision becomes more complex, more ambiguous and more subjective--in other words, as the decision requires the exercise of true judgment. This observation is consistent with the findings discussed above in the context of both race and gender disparities, where disparities are greater when the treatment choices are more ambiguous and thus discretionary. Moreover, characteristics of contemporary health care delivery may increase the opportunities for bias to operate. With the rise of managed care patients today are less likely to have established long-standing relationships with their physicians, and physicians are less likely to have time to spend talking to their patients and getting to know them as individuals. Each of these points indicates that *238 physicians appear increasingly unlikely to obtain (and process) individualized information about a patient that could act to disconfirm a biased assumption.
Thus, it is implausible to conclude that the medical profession has succeeded in eliminating all influence of bias from its enterprise when the rest of society has not. If we accept, based on the foregoing survey of the evidence, that physician bias based on patients' non-medical characteristics does influence medical decision making in some number of cases, then we must turn to questions of whether this operation of bias should be seen as wrong or inappropriate, and whether the existing legal system offers any responses to biased medical decision making. The following Parts turn to these tasks.
III. What's Wrong with Biased Medical Decisions?
Of course, even if one accepts that physician bias based on patients' non-medical characteristics sometimes influences medical decisions, one possible response is “so what?” After all, the influence of characteristics like race, gender, disability or sexual orientation on decisions in the social or economic life of our society may not always be viewed as wrong. Even when such influence is understood to be wrong or undesirable, it may not be seen as deserving legal intervention. This nonjudgmental--or at least noninterventionist--stance towards bias is most common in situations involving private or personal relationships. For example, the same civil rights laws that prohibit exclusionary policies by employers and public accommodations contain exemptions from their coverage for purely private clubs. One could argue that the physician-patient relationship is personal and confidential in nature and thus beyond the proper reach of laws addressing discrimination and bias. Strong arguments exist, however, that *239 the influence of physician bias on medical treatment decisions violates both the ethical and legal norms of the private physician-patient relationship and the public norms embodied in the civil rights laws. Let us turn to a brief articulation of those arguments.
A. The Private Dimension of Biased Medical Judgments
Although the physician-patient relationship may be understood as a personal and confidential relationship, it is nonetheless a relationship that exists within and is (at least theoretically) subject to well-developed ethical and legal norms. A fundamental premise of medical ethics is that a physician is obligated to act in her patient's best interests and to base medical decisions solely on advancing those interests. It is commonly stated that physicians should not allow outside influences to affect their decisions about what is best for their patients. It might also be said that physicians should not allow their own internal biases to affect decisions about their patients' treatment. Indeed, the American Medical Association (AMA) has addressed evidence of racial and gender bias in clinical decision making by including in its code of medical ethics express condemnations of such influences. Thus, organized medicine's official view is that at least some forms of bias are inconsistent with a physician's ethical obligations.
The wrongness of biased medical decisions can also be seen from a slightly different perspective. Not only may bias interfere with a physician's obligation to advance a patient's best medical interests, it also leads to a physician being disloyal to a patient in a fundamental sense. The physician-patient relationship is often characterized as a relationship of trust that is fiduciary in nature; in this light, the physician serves as a “trustee for the patient's medical welfare.” This obligation of loyalty and fidelity requires the physician to elevate the patient's well-being over any self-interest that the physician may have in a situation. While medical ethics recognizes that this obligation of loyalty is not absolute in all situations, *240 the physician who permits personal biases to influence his medical judgment is not maintaining the focus on patient welfare that professional fidelity requires.
Aside from the lofty aspirations expressed in medical ethics codes, the more mundane law of medical malpractice also regulates the relationship between physician and patient, requiring that the physician exercise due care in advising and treating patients. The standard of care in medical malpractice actions is typically articulated as a professional and customary standard of care. Thus, a physician must treat his patients as physicians customarily do under the circumstances. Consequently, if personal bias leads a physician to treat a patient in a manner that falls below the professional standard of care and the patient suffers injury as a result, the physician may be liable. In this scenario, however, the reason for the substandard care (here, bias) is irrelevant; the focus is simply on the quality of care delivered.
The nature of a physician's ethical and legal obligations to her patients has received renewed attention over the past decade as the growth of managed care delivery systems has generated perplexing questions about the conflicts of interest a physician may face in treating managed care enrollees. Managed care plans often incorporate financial incentives for the physician to make cost-conscious diagnostic and treatment choices. Put more bluntly, the physician is paid more for providing less expensive care. Such methods of reimbursement may create a conflict between the patient's best medical interests and the physician's financial self-interest.
A debate has taken root in the medical and legal literature about how to properly view these conflicts of interest: Should they be seen as violating the ethical precepts requiring a doctor to act loyally and solely in the patient's best interests? Or does our understanding of the nature of the physician-patient relationship require revision in light of changes in the world of health care financing and delivery? While some commentators argue *241 that the conflicts of interest posed by managed care's financial incentives create an intolerable incentive for the physician to profit at the patient's expense, others contend that disclosure of the conflict to the patient can adequately ameliorate any risks posed by the conflict. Yet others argue for a reconceived understanding of the physician-patient relationship, an understanding that accepts some carefully bounded financial incentives as ethically legitimate.
Are these questions, regarding the survival of the ethical ideal of a physician's single-minded focus on patient well-being in the face of an assault by managed care payment methodologies analogous to questions about the tolerability of physician bias based on patients' non-medical characteristics? A shared inquiry, after all, is whether a factor other than the patient's welfare (whether that factor is the physician's own financial welfare or the physician's personal biases) can legitimately influence medical treatment decisions. Perhaps, one might argue, if the individual-patient-centered ideal of professionalism is crumbling in the face of managed care's focus on cost containment and population health, then that ideal may no longer be sufficiently robust to demand the elimination of personal biases from physician decision making.
The resemblance between the two situations, however, quickly dissolves upon consideration. The debate regarding physicians' professional obligations in a changing health care financing and delivery system seeks a proper balance between two goods. Doctors, lawyers, ethicists and policymakers all seek to determine when the good of single-minded patient-centeredness should yield somewhat to the conflicting good of containing health care expenditures. It is critical to note that in this debate, commentators deem that containing health care expenditures on an individual patient is a “good” when it permits more cost-effective and broader deployment of health care resources--not when it simply creates fatter profits for managed care investors. In other words, the debate does not diminish the weight attached to professional values of patient-centeredness and loyalty; those values are simply weighed against other identifiable “goods.”
By contrast, identifying any “good” that flows from the unimpeded operation of physician bias is difficult. The most that can be said on behalf *242 of the physicians' personal biases is that human nature allows for such biases to exist and operate. The mere commonness of biases in the broader society, however, hardly qualifies the operation of physician biases as a “good” that could outweigh the ideals of professional fidelity and patient-centeredness. Indeed, it is because human nature often leads individuals to stray from the desired path, that professionals like doctors adopt codes of ethics. Thus, in contrast to the benefits that cost containment may promise, the operation of physician bias offers no “good” capable of outweighing a physician's obligation to act solely in the interests of his patients. This obligation, which inheres in the private relationship between physician and patient, provides one basis for rejecting biased medical judgments.
B. The Public Dimension of Biased Medical Judgments
Not only are biased medical decisions inconsistent with norms governing the personal relationship between doctor and patient, they may also impair widely held political values of justice and equal opportunity. Biased medical decisions are a piece of a much larger picture of health disparities existing between different racial, ethnic and socioeconomic groups in our society. Good health is an instrumental good that enables an individual to pursue other social, economic and personal goals. Ill health, on the other hand, threatens individual economic and social well-being. Consequently, inequalities in the distribution of health among different groups are often viewed as unjustly hindering the less healthy group in achieving not only its maximum health potential, but also its maximum social and economic potential. Admittedly, the role that biased clinical decisions in individual cases plays in creating pervasive health disparities is probably not as significant as the role that socioeconomic disadvantage and other systemic factors play. Nonetheless, as Gregg Bloche suggests, a disparity that results directly from racial or other forms of bias may be particularly offensive to our sense of justice even in a society where socio-economic disparities are broadly tolerated.
*243 If biased clinical judgments result in one group of people receiving medical treatment different from that received by other groups, then members of that group may receive care that is less likely to effectively advance their medical interests. In other words, members of one group may receive suboptimal medical care because of their group membership. Thus viewed, the operation of bias in medical decision making, presents an issue of distributive justice because the operation of medical bias produces treatment differentials that likely result in health inequalities, which in turn may perpetuate social and economic inequalities. If the group whose members are the subject of biased medical decisions is defined racially, ethnically or in a way that has received civil rights protection, then biased medical decisions also present a civil rights challenge. Therefore, biased clinical decisions take on the cast of prohibited discrimination, rather than simply some breach of physician-patient protocol.
Moreover, as suggested in the Introduction, patients' perception of medical bias may have a negative impact on a societal level by decreasing group members' level of trust in the medical profession and health care system. For example, a reluctance on the part of African Americans to seek mental health care, because of a fear of misdiagnosis or inappropriate treatment, will lead to under-treatment of mental illness and to African Americans' “suffer[ing] a disproportionate burden of mental illness.” This unwillingness of members of some groups to seek medical attention may both hinder the health promotion and disease prevention efforts of public health authorities and contribute to a poorer overall health status for group members.
In sum, the operation of bias in medical decisions is a matter of public concern on several levels. Biased decisions can contribute to inequitable health disparities, which in turn may reinforce social and economic disparities. In addition, if the group of patients who are the victims of biased decisions correlate with persons protected by civil rights laws, then biased medical decisions also raise civil rights concerns. Finally, the “trickle down” effect of individual biased medical decisions may produce groups within society whose members are distrustful of the health care system. These effects demonstrate that the harm flowing from biased medical decisions is not limited to the immediate doctor-patient relationship.
This discussion demonstrates on a basic level why the operation of physician bias in clinical decision making is problematic and inappropriate in both its private and public dimensions. The character of the wrong, however, varies depending on whether a private or public perspective is adopted. The two primary avenues of potential legal response to the operation of physician bias, which the following Parts will discuss, track this distinction between the private and public natures of the wrong.
*244 IV. Physician Liability for Violating Professional Duties
If we understand biased medical decisions as violating a physician's professional and ethical obligations to her patients, does any effective legal remedy exist? This Part will consider whether the law of medical malpractice, informed consent or fiduciary duty might provide an avenue of legal recourse to a patient whose physician's treatment recommendation was biased. The argument that a biased medical decision theoretically violates a physician's professional duties to a patient, is fairly straightforward. Proving in court that a particular decision was in fact biased, causing the plaintiff compensable harm, is likely to be more difficult.
A. Recovery for Medical Malpractice
In a medical malpractice action, the plaintiff alleges that the medical care provided by his physician failed to conform to the standard of care and, as a result, caused him injury. Specifically, the plaintiff must prove through expert testimony that the physician's actions were not consistent with the professional or customary standard of care for treating patients with the plaintiff's condition. How might medical malpractice liability-- which essentially sounds in negligence--be an appropriate remedy for a physician's biased decision?
A biased clinical decision can be characterized as medical malpractice in a couple of ways. If bias relating to a clinically irrelevant characteristic of a patient leads the physician to provide treatment inconsistent with how physicians customarily treat the patient's condition, then a medical malpractice action is readily available to compensate the patient for any resulting injury. For example, let us imagine that the standard of care requires a physician to provide further diagnostic testing to a patient whose chest pain and stress test results indicate some cardiac abnormality, but that a particular physician's bias against African Americans leads him to order no further testing for an African-American patient. If the patient subsequently suffers a heart attack due to an undetected and untreated heart condition, he can argue that the doctor's failure to conform to the standard of care was a proximate cause of the injuries. Note in that case, however, bias need not be alleged or proved. The cause of the physician's failure to act according to the standard of care is not at issue; the mere *245 fact of that failure is sufficient to support liability for economic and emotional harms flowing from the failure. It bears emphasizing that in this scenario the patient recovers for negligent medical treatment, not for biased medical treatment. In other words, the legal wrong addressed here is the physician's negligence--whatever its cause--rather than the physician's bias.
What about the case in which (to follow on the hypothetical already suggested) the physician does not fail entirely to provide further testing? Instead, let us imagine that the doctor has several diagnostic tests or procedures to choose from, which vary in cost, risk, invasiveness and overall effectiveness. Assume that the doctor--who typically chooses the newest, high tech, expensive procedure for his white patients--makes a biased choice for his African-American patients of a diagnostic test that is less invasive, less risky, less expensive and overall less effective. The test does not reveal the patient's heart condition, and the patient suffers a heart attack that might have been preventable. Does this patient have a medical malpractice claim?
The problem here is how to determine what the professional standard of care requires. The question is complicated with respect to many medical conditions because no single diagnostic or treatment modality constitutes the definitive standard of care. Instead, physicians as a group may employ a variety of different approaches depending on the patient's clinical characteristics, the patient's insurance coverage, the physician's level of experience with the different options and the physician's own practice style. Add an ever-changing medical technology to the mix, and defining any “customary” standard of care becomes quite difficult. Consequently, the applicable professional standard of care for a particular medical condition may comprise a number of different diagnostic or therapeutic approaches. Indeed, an expert witness for the defendant doctor in our hypothetical might well testify that a choice of any of the follow-up diagnostic tests available to the doctor would have satisfied the professional *246 standard of care and, therefore, it was within the physician's discretion to choose among them. If that's the case, then our patient-plaintiff cannot successfully argue that the physician's chosen intervention violated the customary standard of care.
However, could the patient argue instead that the defendant's failure to conform to the standard of care lay in permitting bias based on a clinically irrelevant characteristic to influence his judgment? The argument would be that doctors do not customarily take the patient's race into account when deciding what diagnostic tests to perform, and therefore the operation of bias in this doctor's decision making deviated from the professional standard of care. Assuming that the plaintiff can prove that racial bias in fact infected the cardiologist's judgment, this argument has some appeal. After all, it seems doubtful that the defendant will be able to find an expert to testify that physicians' decisions regarding cardiac testing are customarily influenced by the patient's race.
The difficulty with this argument is that courts' focus in medical malpractice actions is on whether the defendant's conduct deviated from the standard of care, not on the defendant's motivation or decisional processes. For example, in a recent malpractice action alleging that a *247 physician's sexual relationship with a patient deprived him of the objectivity needed in the patient's treatment, the Oregon Supreme Court held that evidence of the sexual relationship was irrelevant to the medical malpractice claim. The court emphasized the objective nature of the professional standard of care, reasoning that the standardprovides no ground for delving into a physician's subjective state of mind. Physicians may violate their ethical duties if they fail to maintain the requisite clear and objective state of mind--for example, if they work while intoxicated or while their judgment is clouded by a relationship with a patient. But if, despite their less than optimal mental and emotional condition, their actual treatment of a patient reflects the appropriate degree of care, they cannot be held liable in negligence. Therefore, unless the bias-influenced treatment choice falls outside the standard of care, the decision will not be grounds for a successful medical malpractice action. Thus, even if the plaintiff can show that, but for his race, his doctor would have chosen a different diagnostic approach (also within the standard of care) that would have been more likely to detect his condition and permit preventive care, the plaintiff will still lose because he has not shown the defendant failed to conform to the standard of care.
Finally, an even bleaker litigation prospect faces the plaintiff who seeks to sue his physician alleging medical malpractice, but who has not suffered any concrete injury as a result of the physician's biased decision. Again following on our hypothetical, let us assume that the doctor's bias influences him to choose a diagnostic procedure different from the one that he typically chooses for his white patients. In this case, however, the diagnostic test reveals the patient's heart condition and the patient receives appropriate preventive treatment. Nonetheless, the patient somehow learns that his doctor's choice was biased and, as a consequence, feels disrespected and betrayed. This patient is almost certainly unable to recover for medical malpractice, which typically does not award damages for purely dignitary harms.
In sum, traditional medical malpractice law is unlikely to provide an effective avenue for redressing the influence of physician bias on medical *248 decisions. If the bias simply affects the physician's exercise of discretion among a number of clinical options, all of which are within the standard of care (as the medical literature discussed in Part II suggests it often may), the physician's conduct will not be found to deviate from the standard of care and no liability will follow. Physician liability is probable only if the biased decisions produce conduct failing to conform to the customary standard of care, in which case, the fact of bias is irrelevant to the imposition of liability.
B. Liability for Failure to Obtain Informed Consent
An alternative avenue of relief for some patients alleging biased medical decisions is an action claiming a failure to obtain informed consent. Informed consent doctrine generally requires that a physician, prior to providing any kind of therapeutic or diagnostic care to a patient, inform the patient as to the nature and purpose of the proposed care and any non-remote risks associated with the treatment. Courts initially treated a failure to obtain informed consent as a form of battery (since the patient had not consented to the physician's touching). Most jurisdictions today, however, treat informed consent claims as a form of medical malpractice in which the physician's disclosure to the patient is measured against the standard of care.
How could a biased medical decision give rise to an informed consent claim? Cases alleging biased medical decisions would not seem particularly likely to involve a total absence of patient consent, but might comprise a claim of inadequate physician disclosure. Specifically, in some cases the patient might assert that the physician, in recommending the proposed treatment, did not discuss other options. Informed consent doctrine requires a physician not only to advise the patient regarding the proposed treatment, but also to disclose the risks and benefits of viable alternative treatments or diagnostic options. In the hypothetical case of the cardiac patient discussed above, if the doctor failed to tell the patient *249 that other diagnostic tests were also available as follow-ups to the stress test, the patient could allege that the failure to make that disclosure was negligent.
The informed consent plaintiff, however, cannot recover simply by showing a negligent failure to disclose alternatives. He must also show causation by proving that if adequate disclosure had been made, he would have opted for an alternative diagnostic or treatment choice and would thereby have avoided injury. In other words, our cardiac patient would have to prove that if his doctor had described to him the riskier, higher tech diagnostic procedure, he would have demanded that intervention, rather than the one recommended by his doctor, and that as a result his heart attack would have been avoided. Thus, proving causation can be particularly challenging in an informed consent action. Moreover, recovery on a negligent disclosure claim (as with a negligent treatment claim) does not depend on any showing of bias, but only on the doctor's failure to conform to the standard of care. Consequently, even a plaintiff who can put forward the proof necessary to recover on a negligent disclosure claim is not directly vindicating his right to receive unbiased medical advice.
C. Liability for Breach of Fiduciary Duty
Based on the foregoing, medical malpractice law seems generally unconcerned about the subjective aspect of physicians' clinical judgments and thus would seem to provide no remedy for the operation of bias in medical decision making. A limited exception to this general rule is suggested in those cases where a patient alleges a physician's failure to disclose to the patient conflicts of interest the physician faces in making therapeutic decisions. These claims object to the physician's failure to conform to the ethical principles that undivided loyalty to a patient should guide a physician's decisions, and that any influence on a physician's decisions--other than the patient's welfare--must be disclosed to the patient. Thus, the fiduciary nature of the physician's obligation to the patient brings into focus the subjective motivations for the physician's choices.
Indeed, the decision of the California Supreme Court in Moore v. Regents of the University of California, wedded the concepts of informed consent *250 and the disclosure obligation flowing from a physician's fiduciary duty. The plaintiff, Moore, sought treatment for his hairy-cell leukemia at UCLA Medical Center. In the course of treating Moore for the leukemia, his physician, Dr. Gold, withdrew samples of Moore's blood, bone marrow aspirate and other bodily substances, and ordered the removal of Moore's spleen. Unbeknownst to Moore, however, Dr. Gold knew that the cells removed from Moore's body could be substantially valuable to researchers seeking to commercially develop cell lines. The court upheld Moore's action against Dr. Gold for failing to disclose his research and economic interests in Moore's cells before obtaining Moore's consent to the procedures by which those cells were removed. The court explained that the cause of action could be characterized “either as the breach of a fiduciary duty to disclose facts material to the patient's consent or, alternatively, as the performance of medical procedures without first having obtained the patient's informed consent.”
Thus, the California court characterized a physician's relationship to the patient as fiduciary in nature and stressed that the fiduciary obligation required the physician's disclosure of “personal interests unrelated to the patient's health, whether research or economic, that may affect the physician's professional judgment.” While not holding that the mere existence of potential conflicts of interest breached the physician's fiduciary duty, the court noted that a reasonable patient would want to know of such conflicts in deciding whether to consent to a recommended procedure because of the possibility that “a physician who does have a preexisting research interest might, consciously or unconsciously, take that into consideration in recommending the procedure.” Thus, according to the Court, the physician's fiduciary obligation requires, at a minimum, that he inform patients of any subjective motives that might influence his professional judgment.
By implicitly recognizing that a physician's professional judgment should not be influenced by considerations unrelated to the patient's health, Moore suggests that pursuing a cause of action for breach of fiduciary duty may prove more fruitful than a regular medical negligence action for a patient complaining of biased medical decisions. But does a physician stand in a fiduciary relationship to his patients? The law of fiduciaries applies to relationships in which one party (the fiduciary) is entrusted to use power or property for the benefit of another; this entrustment is often based on the fiduciary's specialized knowledge and requires the fiduciary *251 to exercise judgment in order to advance the interests of the other, who is typically unable to supervise adequately the fiduciary's performance. Based on this combination of factors involving entrustment, expertise and dependence, courts may conclude that a relationship is fiduciary in nature and, as a result, hold the fiduciary to the highest standard of conduct. The characteristics described typify the physician-patient relationship, and both commentators and the courts have recognized the physician's relationship to her patients as being fiduciary in nature. Although characterizing a physician as a fiduciary for his patients deviates somewhat from the typical understanding of a fiduciary as one who holds the financial interests of another in trust, the physician's fiduciary duty is a fitting legal analog to the physician's ethical duty to act with undivided loyalty in pursuing the patient's best interests.
Despite this broad agreement that a physician's relationship to her patients is fiduciary in character, the specific nature of the resulting obligations *252 is less clear. At the most basic level, a fiduciary's duty of loyalty requires her to act for the benefit of another, and she cannot elevate her own interests over those of the beneficiary. This duty may sometimes preclude the fiduciary from engaging in economic or other arrangements that may create a conflict of interest between the fiduciary and the beneficiary of the relationship, but in some instances the risks posed by such arrangements may be mitigated by the fiduciary's disclosure of and the beneficiary's consent to the arrangement.
Although a patient's claim of biased medical decisions will not typically involve a financial conflict of interest, the patient can assert that the physician breached his fiduciary obligation of undivided loyalty to the patient. Specifically, the patient could argue that, by allowing a clinically irrelevant characteristic to influence his choice of treatment, the physician failed to act solely in the patient's best interest. This argument carries the most force when a physician consciously allows a known animus or passion against a particular group to affect his clinical decisions for a member of that group. An example of this is a physician whose homophobia leads him to provide inferior treatment for gay patients. In that circumstance, the physician is consciously elevating his own psychic or emotional interests in acting on his animus over his obligation to advance the patient's best interests. Nevertheless, one could argue--in light of the law's imposition of the “highest standard of conduct” on fiduciaries--that even cases involving unconscious bias present a violation of a physician's fiduciary duties to his patients. Given physicians' high level of expertise and the substantial deference that many patients accord to physicians' recommendations, it seems plausible that physicians' fiduciary obligations should include an obligation to “self police” their decision-making processes for any illegitimate influence. Certainly, the patient, who typically does not have the physician's specialized knowledge and training and whose very need for medical treatment creates vulnerability, is in no position to effectively monitor the physician's thought processes.
But even if we understand a physician's fiduciary duties as including an obligation to engage in self-reflective assessment of his own clinical decisions in order to identify and screen out any bias, does a patient who can prove that her physician violated this duty have any legal recourse? Commentators have noted that the courts' willing characterizations of physicians as fiduciaries have not been matched by an enthusiasm for holding physicians legally accountable. A few courts have given teeth to physicians' *253 fiduciary obligations, but many of these cases have involved physician dishonesty or abuse of power, arguably separate from the physician's actual treatment or diagnosis of the patient. By contrast, several courts have refused to allow a separate cause of action for breach of fiduciary duty based on a physician's treatment of a patient.
In Neade v. Portes a widow sued the physician of her late husband for repeatedly failing to order an angiogram that would have revealed her husband's coronary artery blockage. The plaintiff alleged both that Dr. Portes acted in a medically negligent manner in failing to authorize the angiogram and that he breached his fiduciary duty to the patient by so failing and refusing to disclose to the patient financial incentives that created a financial conflict of interest between him and the patient. While acknowledging that Illinois courts had recognized the physician-patient relationship as fiduciary in nature, the Illinois Supreme Court refused to recognize a separate cause of action for breach of fiduciary duty on the facts of the case. The court reasoned that both the fiduciary duty action and the malpractice action alleged the same operative facts and the same injury. It concluded that, because the negligence claim of the plaintiff sufficiently addressed the alleged wrongdoing, the fiduciary duty claim would be duplicative. The court also noted that courts in other jurisdictions similarly refused to recognize fiduciary duty claims against a physician when the essential allegations were of medical negligence.
What is the importance of the court's reasoning in Neade for a plaintiff who pursues a breach of fiduciary duty claim against her physician *254 based on an allegedly biased medical decision? If the plaintiff pursuing a fiduciary breach action received treatment or disclosure that fell below the applicable standard of care, a court hearing the claim may conclude that the plaintiff's suit impermissibly recast a malpractice cause of action, perhaps to evade a shorter statute of limitations or avoid legislatively imposed procedural hurdles to medical malpractice claims. As discussed above, however, in many cases the victim of a biased medical decision may have received treatment that fits comfortably within the range of accepted medical options. That plaintiff complains not simply of substandard treatment (i.e., treatment that falls below the standard of care), but of suboptimal treatment (i.e., treatment that was not chosen solely to advance the patient's best medical interests). Moreover, the plaintiff also complains of dignitary harm caused by the violation of trust that occurs when a physician's personal bias infects his clinical judgment in making decisions for the patient. These harms, which flow directly from the physician's violation of the patient's trust, are arguably distinguishable from and independent of the harms complained of in a medical malpractice action.
In addition, allowing a physician's personal bias against a clinically irrelevant characteristic of the patient to affect the physician's judgment seems more ethically questionable and less amenable to amelioration than the financial conflicts of interest at issue in Neade. Although some would argue that a breach of fiduciary obligation inheres in a physician's mere agreement to be compensated in a way that gives him incentives to provide patients with less treatment, others could point out that cost control is an imperative in contemporary health care and that financial incentives for physicians may be an acceptable mechanism for encouraging cost-conscious medical practice. From this viewpoint, a financial conflict of interest is a “consentable” conflict, and the doctor may satisfy his obligation by disclosing the existence of any financial incentives to his patients so that they can better assess their medical options. Moreover, *255 third parties external to the relationship may have the ability (and perhaps the obligation) to inform the patient of incentives.
Applying parallel reasoning to an alleged fiduciary breach in the form of a biased medical decision illuminates the critical distinctions between complaints of financial conflicts of interest and complaints of physician bias. Do we contemplate a conversation in which a physician informs a patient with a disability that the physician is biased against disabled persons and that he frankly does not think their lives are worth as much as those of “normal” people? Or perhaps a conversation in which a doctor tells an African-American patient that he is biased against African Americans because, based on his personal experience, he doesn't think they are likely to comply with prescribed treatment regimens?
To my mind, these conversations are neither probable nor desirable responses to the problem of physician bias. Are physicians, if they are aware of their own biases, likely to be willing to disclose them to their patients? Who, but the physician, would be in a position to be able to disclose such biases? And even if physicians did disclose their biases, would that legitimate the influence of those biases on their medical decisions? My response (with which I hope that at least some would agree) would be that bias, even if disclosed, remains problematic because it may serve to interfere with a patient's receipt of optimal medical care without advancing any legitimate, countervailing interest. We may accept financial conflicts of interests as consentable conflicts whose existence do not inevitably breach the physician's fiduciary obligations because we recognize they may advance the social goal of health care cost containment. But what social goal is advanced by permitting physicians' personal biases to infect their medical judgment?
Of course, even if a case can be made that the Illinois court's reasoning in Neade should not apply to claims alleging that the operation of physician bias constituted a breach of fiduciary duty, a big question still looms: What can a plaintiff recover if she successfully persuades the trier of fact that bias affected her physician's choice of treatment for her? As discussed above, sometimes a plaintiff could claim that bias influenced her doctor to prescribe a treatment other than the one most likely to improve her health. Even if the treatment prescribed fell within the standard of care, the plaintiff could still argue that it was suboptimal and that she suffered injury as a result. If the plaintiff incurred physical injury and she can show *256 that the optimal treatment would have allowed her to avoid the injury, she can argue that the harm suffered flowed directly from the operation of bias, which was in breach of the defendant's fiduciary duty. In this case, the plaintiff could highlight that, because no medical malpractice action lies against the physician in this case (because he complied with the standard of care), the fiduciary breach action will not duplicate a negligence action. Of course, courts may be disinclined to impose liability on a doctor who has satisfied the standard of care; the plaintiff's task would be to convince the court that the breach of fiduciary duty is a wrong independent of compliance with the standard of care.
By contrast, if the plaintiff claims that bias influenced her physician's choice of treatment, but she cannot show that the biased treatment caused any physical injury, her task is even tougher. The plaintiff must convince the court of the appropriateness of recovering damages for a purely dignitary harm--the harm to her dignity as a person, caused by her physician's betrayal of her trust. The defendant doctor would doubtless argue that damages should be recoverable only on a showing of actual physical harm, as is required in a malpractice action. The plaintiff can point out, however, that a court may allow the recovery of damages for dignitary harms in informed consent cases because the failure of informed consent deprives the patient of self-determination and may cause mental distress. Similarly, the fiduciary breach that occurs when personal bias influences a physician's treatment choice may well affront the patient's sense of personal dignity, damage his self image and affect his ability to trust physicians in the future. These types of harms may be compensated by damages if *257 they accompany a so-called “dignitary tort.” Admittedly, the action for a physician's breach of fiduciary duty is not currently a well-established dignitary tort. Given the recognition that damages for dignitary harm may sometimes be recovered in informed consent cases, however, arguing for the availability of such damages in a physician fiduciary breach claim is not too great a stretch.
In conclusion, unless a patient-plaintiff can show that bias caused his physician to prescribe a treatment inconsistent with the professional standard of care, the plaintiff may best voice his aggrievement in an action alleging that biased decision making breached the physician's fiduciary duty to the plaintiff. Even if the physician did not negligently treat the patient and caused the patient no physical harm, the patient who learns of his physician's bias-infected judgment is harmed by the affront to his personal dignity and integrity, and by the impact on the physician-patient relationship that such a breach of trust entails. Although some courts have recognized that physicians who breach their fiduciary duties may be held liable, others have not. Moreover, the cases recognizing the potential for liability often have involved physician conduct that was not integral to the therapeutic relationship between physician and patient. Thus, a patient who sues her doctor for breach of fiduciary duty may have to struggle to convince the court that she is not simply complaining of professional negligence and that she has suffered compensable harm beyond that associated with any physical injury. Ultimately, existing law provides the raw materials for such a claim, but it remains far from clear whether courts would stretch the existing boundaries of physician liability to encompass this cause of action. *258
D. General Barriers to Recovery for Physician Violation of Professional Duties
1. Challenges of Proving the Operation of Bias
Regardless of the precise framing of the claim, a plaintiff seeking redress specifically for the operation of bias in clinical decision making will have to prove that bias in fact infected her physician's decision regarding her diagnosis or treatment. Doing so will prove a challenge in most cases--at times an insuperable one. Trying to prove the operation of bias in a suit against a doctor for violating professional duties will present difficulties similar to those a plaintiff suing a doctor for violating a civil rights statute faces in trying to prove intentional discrimination, which will be discussed in Part V.B.2. below.
That said, proving the existence of a physician's bias may be relatively straightforward in some cases. A patient can sometimes point to evidence of a physician's statements to the patient, to the patient's family, to nurses or to the physician's colleagues as demonstrating that the physician entertained one or more stereotypes associated with a non-medical characteristic of the patient. Patients who enjoy no, or only very limited, protection under civil rights laws (for example, gays and lesbians or obese persons), may be more likely to obtain such proof because bias against some unprotected groups remains more socially acceptable (at least in some circles) and the statements may be perceived as less legally risky. The patient can scrutinize not only the physician's statements, but also his actions unrelated to his clinical treatment of the patient, as a basis for inferring that the physician is biased against a group to which the plaintiff belongs.
But what if direct evidence suggesting bias is limited or nonexistent? In that case, the plaintiff can still seek to provide circumstantial evidence of bias by demonstrating that the physician has a pattern of treating patients with a certain characteristic differently from similarly situated patients without that characteristic. For example, a physician may have a pattern of ordering heart bypass surgery for male patients, but not for female patients. From evidence of a pattern of treatment disparities between the physician's male patients and female patients, the plaintiff can argue that the trier of fact should infer bias on the physician's part and find that bias influenced the physician's judgment in the plaintiff's case.
Although the argument for inferring the existence of bias from a pattern of differential treatment is fairly straightforward, obtaining evidence of treatment patterns may prove quite difficult. The medical records of persons who are not parties to litigation fall within the scope of the physician-patient *259 privilege and generally are not discoverable. Although state statutes and case law shape its precise contours, the privilege is commonly described as having a dual purpose: “to promote candid and complete communication between doctor and patient in furtherance of competent medical care and to maintain privacy by preventing the disclosure of highly personal information.” Thus, a plaintiff seeking to discover the records of other patients treated by the defendant physician in hopes of identifying a pattern of differential treatment will almost certainly be met with an objection on the grounds of the privilege.
In many jurisdictions, however, the physician-patient privilege is not an insurmountable barrier to obtaining the medical records of non-parties. Courts in a number of jurisdictions have found that allowing discovery of non-party records does not violate the privilege if information identifying those non-parties is redacted. Some courts have allowed discovery based simply on a deletion of identifying information from the records; others have demanded more stringent safeguards for preserving non-party privacy and confidentiality. Regardless of the precise protective measures required, the courts' rationale in allowing discovery is that disconnecting the information in the records from the identity of any particular patient protects the policies underlying the privilege, while still allowing for the discovery of relevant evidence. Notwithstanding this *260 willingness of many courts to allow the discovery of redacted non-party medical records, some courts maintain a strong version of the physician-patient privilege that blocks all discovery of non-party records. Thus, in those states, plaintiffs who have no direct evidence of physician bias may be barred from discovering evidence capable of showing a pattern of disparate treatment from which bias might be inferred. Still, in most states, if the plaintiff can articulate the relevance of the defendant physician's treatment of his other patients to the plaintiff's attempt to prove bias, seeks the redaction of all identifying information from the non-party records and is willing to agree to any further protective measures required by the court, the plaintiff stands a good chance of obtaining discovery of the medical records of other similarly situated patients of the defendant physician.
Of course, even if a plaintiff discovers the medical records of the defendant's other patients similarly situated to the plaintiff, and those records do in fact demonstrate a pattern of differential treatment from which a jury could infer the existence of bias, the plaintiff still must prove that the bias operated in her case and prejudiced her physician's clinical judgment. The fact that a physician holds stereotyped views about a particular group, and consequently tends to treat patients in that group differently from his other patients, does not mean that the physician's bias operates without exception every time he treats a group member. Thus, it can be tricky to assess whether bias played a role in the defendant's judgment regarding the plaintiff's treatment. Even if the physician's *261 recommended treatment for the plaintiff fits with the pattern of differential treatment, the physician probably will offer a plausible, unbiased medical reason for the choice or will point to the patient's preference as supporting his choice. Accordingly, the plaintiff will have to convince the jury that bias, and not one of these neutral reasons, explains the physician's choice.
2. Challenges of Proving Causation and Damages
While the preceding discussion regarding the recoverability of damages for dignitary injuries highlights the particular problem confronting a plaintiff who alleges biased medical decision making, but who has suffered no physical injury, even a plaintiff who suffers specific physical harm after receiving medical treatment is likely to have a hard time proving that physician bias caused that harm. Proving that--but for the operation of bias--the plaintiff would not have suffered the harm effectively requires the plaintiff to prove that the intervention that an unbiased physician would have chosen would have led to a superior outcome for the plaintiff.
Of course, if bias in a particular case caused the physician to order treatment that clearly fell outside the standard of care and the patient's condition is one that is typically amenable to effective treatment, the plaintiff-patient may be able to prove causation and resulting damages fairly easily. But if the biased physician's chosen treatment is within the professional standard of care, it becomes more difficult to prove that an unbiased physician more likely than not would have chosen a different treatment. An exception to this general statement might occur when a new technology or treatment is recognized within the medical community as being superior, but has not yet become widely disseminated and thus has not yet effectively preempted other treatments from the standard of care. In that case, a physician who is aware of and has access to the superior treatment but nonetheless, as a result of bias, orders a less effective treatment for a particular patient might be found to have caused the resulting injury, notwithstanding the fact that the treatment ordered complied with the customary standard of care. As a result, a court willing to *262 recognize a cause of action based on the operation of bias independent of any deviation from the standard of care might allow for a recovery.
A challenge remains in proving damages where none of the diagnostic and treatment choices available to a physician is certain to be effective. In that case, the plaintiff may be unable to prove that any intervention would have prevented the ultimate harm she suffered. In other words, the defendant would argue, the cause of the harm was lung cancer, heart disease or stroke, not the physician's treatment choice. In cases involving conditions for which no generally effective treatment exists, courts that accept the “loss of chance” doctrine may nonetheless allow some recovery if the physician's action caused the patient to suffer a decreased opportunity for cure or survival. For example, if surgical removal of a particular type of cancerous tumor combined with chemotherapy leads to a statistical one-year survival rate of forty percent, but aggressive chemotherapy alone produces only a twenty-five percent survival rate, the estate of a patient whose physician orders only chemotherapy cannot argue that she more likely than not would have lived had she received the surgery. The estate can argue, however, that her physician's choice deprived her of an increased chance of survival. Not all jurisdictions, however, have adopted the loss of a chance doctrine, and even those that have may not allow a living plaintiff to recover for a claimed decrease in her odds of continued survival.
Concededly, these challenges to proving causation and damages are not unique to a plaintiff who seeks to recover from a physician for harm associated with a biased medical decision; they are instead problems commonly faced by medical malpractice plaintiffs. It seems plausible to speculate, however, that the novel nature of the plaintiff's claim of biased medical treatment and the difficulty in proving the existence and operation *263 of bias in medical decisions may influence the rigor with which a court applies causation and damages limitations. Thus, proving that physical injury resulted from the operation of bias in clinical judgment will typically be an uphill battle. For the plaintiff who has suffered no physical harm and seeks to recover solely for dignitary injuries, the task, discussed above in Part IV.C., is to persuade the courts to extend recovery for dignitary harm to this setting. In either case, the likelihood of recovering damages substantial enough to provide a financial incentive for suit seems quite small in most cases. As a practical matter, these bleak prospects of success seem unlikely to motivate many patients who believe that their physician's medical judgment was infected by bias to bring suit based on some theory of the physician's violation of professional duties.
V. Physician Liability for Civil Rights Violations
Given the likely difficulties in succeeding on a claim alleging that a biased decision violated a doctor's professional obligations to an individual patient, perhaps a theory of recovery that adopts a broader view would be more promising. If we approach the influence of bias on medical decision making as a problem of a physician treating similarly situated patients differently, then we can see that the bias produces discriminatory medical treatment decisions. Once we frame the problem as discrimination, then the application of civil rights laws to instances of that discrimination seems a natural response, at least if the characteristic prompting the discrimination is one that receives protection under anti-discrimination laws. This Part will begin by identifying the variety of federal statutes that patients aggrieved by biased medical judgments might invoke in seeking a civil rights remedy. After laying out this arsenal of statutory weapons, this Part will then discuss likely barriers to an effective civil rights remedy for instances of biased medical treatment.
A. Which Civil Rights Statutes Apply?
1. Race-biased Decisions: Title VI of the Civil Rights Act of 1964
A patient who believes that her race, color or national origin influenced her physician's choice of her medical treatment may assert that the physician's actions violated Title VI of the 1964 Civil Rights Act. Title VI prohibits any program or activity that receives federal funding from discriminating based on an individual's race, color or national origin. In addition, Title VI authorizes federal agencies that extend federal funding to promulgate regulations to effectuate Title VI's nondiscrimination mandate. *264 Many federal agencies have issued regulations that prohibit federal funding recipients from employing facially neutral policies or practices that have an adverse disproportionate impact on racially or ethnically defined groups. The federal Department of Health and Human Services (DHHS), which extends federal funding for health care programs, is among the agencies that have promulgated disparate impact regulations.
Because the federal portion of all health expenditures made nationally is substantial, the number of entities in the health care sector that potentially qualify as a “program or activity receiving Federal financial assistance” is huge. The federal government has poured money into the health care sector in the form of payments through the Medicare and Medicaid programs, through hospital construction grants under the Hill-Burton Act, through the funding of graduate medical education and through its support of community health clinics, to name only some of the largest funding programs. Indeed, the newly minted Title VI was used effectively to combat racial segregation in hospitals in the mid 1960s, when the creation of the Medicare program made virtually all hospitals recipients of “federal financial assistance” in the form of Medicare reimbursement for hospital services. Subsequent attempts to use Title VI to address alleged racial or ethnic inequality in the context of health care, however, have produced more mixed results. Although black patients *265 have had some success challenging hospitals' and nursing homes' use of admissions policies that have a disparate impact on black patients, cases challenging the relocation or closure of hospitals as having a discriminatory impact have not succeeded.
From the perspective of a patient who believes himself to be the victim of racially biased medical judgment, the threshold question is whether his doctor would be deemed to be “a program or activity receiving Federal financial assistance” such that the doctor would be bound by Title VI in practicing medicine. Although a physician's medical practice might not typically be thought of as a “program or activity,” the statutory definition of that phrase makes clear that a sole proprietorship engaged in the business of health care can be a program or activity subject to Title VI. Of course, the statute reaches only as far as federal funding flows, but the majority of physicians in the U.S. receive some federal monies in the form of reimbursement for services provided to persons covered under the Medicare and Medicaid programs. Indeed, physicians receiving Medicare and Medicaid reimbursement have been deemed to be recipients of “federal funding assistance” as that phrase is used in the Rehabilitation Act of 1974.
Shortly following the enactment of Title VI, however, the federal Department of Health, Education and Welfare interpreted the law such that private physicians who received money for treating patients covered under *266 Medicare Part B would not be deemed recipients of federal financial assistance. The Department's legal grounding for this policy was the language in Title VI excluding any “contract of insurance or guaranty” from the definition of program or activity. Because Medicare Part B originally mimicked the operation of traditional indemnity insurance (whereby the insured suffered a loss and was therefore indemnified), the Department apparently concluded that the insured's (i.e., patient's) payment of insurance proceeds received from Medicare Part B to a treating physician did not constitute federal financial assistance to the physician. This “contract of insurance” rationale, however, would not shield from Title VI coverage physicians who, by contrast, receive direct payment of federal funds for providing services under Medicaid, the State Children's Health Insurance Program or another federally funded program. The percentage of physicians nationally who provide services to Medicaid recipients, however, is notably smaller than the percentage who treat Medicare beneficiaries.
As David Barton Smith points out, the rationale for placing physicians participating in the Medicare program beyond the reach of Title VI has become “increasingly attenuated with time.” Over the past two decades, the Medicare program has taken a number of steps to encourage or require private physicians to accept payment directly from Medicare as payment in full for services rendered to Medicare beneficiaries. Moreover, *267 a substantial number of Medicare beneficiaries are now enrolled in managed care plans offering coverage under Medicare Part C; these managed care plans, which receive funds directly from Medicare to provide all Medicare-covered benefits (both Part A and Part B), contract with physicians to render medical services to the Medicare enrollees. Thus, these plans should certainly be seen as recipients of federal funding assistance, and the actions of physicians whom the managed care plans engage to provide medical services arguably should be seen as subject to Title VI's constraints. As others have argued: “[T]he evolution to managed care would presumably be profoundly important where the application of Title VI principles to physician practices is concerned. The reach of a monthly enrollment fee consisting of federal funds would appear to bind the network [physicians] to Title VI obligations . . . .”
Applying Title VI's nondiscrimination mandate to managed care plans that contract to provide health services to Medicare beneficiaries could be particularly significant because Title VI not only constrains the actions of a funding recipient with respect to individuals who are receiving federally funded services from the recipient, but also prohibits the recipient from discriminating in any of its activities. In other words, if HMOs *268 providing coverage to Medicare beneficiaries under Part C are deemed to be recipients of federal financial assistance under Title VI, then the obligation of the HMO (and its contractually engaged network physicians) to refrain from discrimination extends not only to its Medicare enrollees, but to all its enrollees.
Thus, even if the original administrative policy that a physician's receipt of Medicare Part B payments does not trigger Title VI coverage could withstand a contemporary legal challenge, a physician who receives federal financial assistance in the form of Medicaid reimbursement, or who is contractually linked to a managed care plan that provides services for Medicare or Medicaid enrollees, should be seen as subject to the constraints of Title VI. Consequently, a patient who can show that such a physician discriminated based on the patient's race in making a medical treatment decision should have a remedy under Title VI. That remedy could take the form of injunctive relief, if the patient can establish standing by demonstrating a “real or immediate threat that the plaintiff will be wronged again.” Alternatively, a patient proving intentional discrimination could seek monetary damages under Title VI. Of course, as will be explored below, the trick in virtually all such cases will be proving that the doctor discriminated based on race. It is worth highlighting here, though, that--if the plaintiff can prove discrimination--Title VI applies and provides an avenue of legal recourse to the victim of a racially biased treatment decision by a physician who receives federal financial assistance. By contrast, racially biased decision making by a physician who receives no federal funding--whether directly or through contractual arrangements--would appear not to trigger civil rights liability.
*269 2. Gender-biased Decisions: Is there an Applicable Statute in the House?
While Title VI would appear to prohibit racially or ethnically biased clinical decisions by a physician who receives federal financial assistance, it does not prohibit gender-biased decision making. Thus, a patient who believes that her physician's treatment recommendation was influenced by the patient's gender (beyond any legitimate clinical relevance) must look to other civil rights statutes for any available relief. Two statutes prohibiting sex discrimination are Title VII of the Civil Rights Act, which prohibits sex discrimination in employment settings, and Title IX of the Civil Rights Act, which prohibits sex discrimination in educational programs receiving federal funds. Neither of these statutes, however, is likely to provide any remedy to a victim of gender-biased clinical decisions.
a. Title VII's Prohibition on Employment Discrimination
At first blush, Title VII's prohibition on sex discrimination by employers might appear to have no bearing on gender discrimination in the health care context. Title VII, however, prohibits employers from discriminating against women not only in hiring, firing and promotion decisions, but also with respect to the benefits the employer provides, including health benefits. Moreover, Title VII applies to forbid both intentional discrimination against women as well as employer policies and practices that are facially neutral, but that have a disparate impact on women. Thus, an employer may be subject to Title VII liability for providing a benefit that, on its face, is available equally to men and women employees, but that is less valuable to women employees. A recent example is the decision in Erickson v. Bartell Drug Co., where an employer-provided health plan that excluded coverage of prescription contraceptives violated Title VII because “the exclusion of prescription contraceptives creates a gaping hole in the coverage offered to female employees, leaving a fundamental and immediate health care need uncovered.”
But even if discrimination in the terms of employer-provided health insurance coverage may violate Title VII, it remains difficult to imagine *270 how Title VII would ever reach biased medical decision making. Physician bias, when it exists, operates in individual physician-patient encounters and colors a physician's decision making with respect to individual patients. The biases and stereotypes that infect an individual physician's clinical judgments are not easily conceptualized as falling within the “compensation, terms, conditions, or privileges” offered by an employer. Even if an employer self-insures the health care expenses of its employees rather than purchasing a commercial group insurance policy to cover those expenses, the employer's mere reimbursement of employee medical expenses would not seem to transform the medical services that produced those expenses into “compensation, terms, conditions, or privileges of employment.” The only situation in which Title VII might arguably provide a remedy for gender-biased medical decision making would be in those rare instances where the employer actually hires physicians to provide health care services to employees. In that case the employer could arguably be held liable under agency theory for the physician's discriminatory treatment of employee patients. Thus, Title VII could provide an avenue for legal redress of gender-biased medical treatments decisions only in an extremely limited number of cases.
b. Title IX's Prohibition on Educational Discrimination
Would, by contrast, Title IX of the Civil Rights Act provide a possible remedy in a broader range of cases? Title IX, best known for bringing schoolgirls onto athletic playing fields, broadly prohibits sex discrimination in “any education program or activity receiving Federal financial assistance.” Graduate medical education programs--the teaching hospitals in which physician interns and residents complete their postgraduate training under the supervision of teaching physicians--certainly receive their share of federal funding, and thus arguably fall within the scope *271 of Title IX's prohibition. Thus, a woman who believes that she has received biased medical treatment from an intern, resident or teaching physician participating in a graduate medical education program may argue that the treatment violated Title IX.
Despite the weighty link between the federal purse and teaching hospitals, several problems with this theory of liability leap to mind. First, Title IX's protection from sex discrimination may be limited to students and employees of federally funded education programs. Accordingly, a patient receiving treatment from a student or employee would not have a cognizable Title IX claim. In addition, courts would likely be unwilling to hold the graduate medical education program vicariously liable for a Title IX violation based on a medical decision by an employee physician. The program itself could be held liable for violating Title IX only if some program official, who had the authority to address the allegedly biased clinical decisions, actually had knowledge of the biased decisions and failed to take any corrective action. Thus, because Title IX constrains only the educational program's behavior, individual employees of the program are not proper defendants in a Title IX action. Given these limitations, the chances of success for a patient who received gender-biased medical treatment at a teaching hospital would be miniscule.
3. Disability-biased Decisions
Contrasting with the dearth of federal civil rights statutes potentially applicable to gender-biased medical decisions, two federal statutes-- Section *272 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act (ADA) --may apply if a person with a disability alleges that his disability biased his physician's medical judgment. Both of these statutes prohibit discrimination based on disability, and the later of the two (the ADA) is patterned on the earlier. The two statutes, however, differ in the range of actors subject to their prohibitions and in the remedies available to victims of a statutory violation. This section will briefly outline these differences and then examine an issue common to the application of both Section 504 and the ADA to discriminatory medical decision making: Does disability discrimination law properly reach such decisions?
a. Section 504
Congress patterned the anti-discrimination provision included in the Federal Rehabilitation Act of 1973 after Title VI of the Civil Rights Act of 1964. Accordingly, Section 504's prohibition on disability discrimination is limited (as is Title VI's prohibition on racial discrimination) to programs and activities receiving federal financial assistance. As noted above in the discussion of Title VI, however, the extent of federal expenditures on health care keep the limiting phrase from being terribly limiting in the health care context. Courts have found a variety of different health care providers, including individual physicians, to be recipients of federal funding subject to Section 504's constraints. Because Section 504 (unlike Title VI) does not exclude “contracts of insurance” from the federally funded programs and activities covered, no barrier would appear to prevent holding physicians receiving Medicare Part B payments accountable *273 for any discriminatory actions. Notwithstanding this distinction in statutory language, however, DHHS has adopted a “contracts of insurance” exclusion in its regulations under Section 504. Thus, a patient who has a disability and who believes that disability bias influenced her physician's treatment choices can argue that the physician's decision subjected her to discrimination in violation of Section 504, as long as the physician receives Medicare or Medicaid payments. A physician who is accused of violating Section 504 and whose only source of federal funding is Medicare Part B payments may defend on this basis, but the strength of this defense remains unclear. The patient who brings a Section 504 action against her physician can seek either appropriate injunctive relief or compensatory damages for any injury suffered as a result of the discrimination.
b. Americans with Disabilities Act
When Congress enacted the Americans with Disabilities Act in 1990, it extended Section 504's existing prohibition against disability discrimination to a far broader range of actors. Congress accomplished this extension by uncoupling the anti-discrimination mandate from the receipt of federal funding and applying it directly to employers, public entities and public accommodations. Of particular interest for this Article's purpose is the ADA's prohibition of disability discrimination by public accommodations, for the statute's illustrative list of public accommodations subject to *274 the ADA includes the “professional office of a health care provider.” As a result, Title III of the ADA prohibits any physician in private practice, who owns or operates his own professional office, from discriminating against a person with a disability regardless of whether the physician receives federal funding in any form. Of course, physicians employed by publicly owned and operated hospitals and clinics may also make disability-biased medical decisions. Any behavior of these physicians that is arguably discriminatory would be covered not by Title III of the ADA, but by Title II, which prohibits disability discrimination by public entities.
While the ADA prohibits disability discrimination by a broader range of actors than does Section 504, its remedies for a plaintiff suing a physician alleging disability discrimination are more limited. Title III--the portion of the ADA most likely to be implicated in such a suit--provides only for injunctive relief, as opposed to money damages, in a private action. Because only injunctive relief is available, a plaintiff suing a physician for violating Title III must satisfy standing requirements. The inability of a plaintiff to show his likelihood of facing future harm from the alleged unlawful conduct has barred the claims of several Title III plaintiffs in the health care context. Although a patient with serious or chronic health problems such as heart disease or cancer may assert that he will need continued care and advice from his physician and thus faces a threat of continued discrimination, demonstrating the likelihood of continued *275 discrimination may be difficult. Thus, if the allegedly biased decision making occurs only in a single, isolated incident, the patient may find no relief available under Title III.
If, by contrast, the plaintiff alleges that a physician employed by a public health care facility made a disability-biased medical decision, the ADA's public entity provisions in Title II would supply the appropriate avenue of relief. An individual with a disability who believes she has been the victim of discrimination by a public entity can bring a private suit in federal court, and Title II provides that the plaintiff is entitled to the full range of remedies available under Section 504. Thus, a plaintiff suing a public entity could seek and recover monetary damages.
The ability to bring an ADA action in federal court to recover money damages from a public entity that is a state agency, however, has been thrown sharply into question by the Supreme Court's decision in Board of Trustees of the University of Alabama v. Garrett. In Garrett, the Court held that the Eleventh Amendment's grant of sovereign immunity barred a suit for money damages by state employees under the employment provisions of Title I of the ADA. Although Garrett did not address whether the Eleventh Amendment bars suits against state agencies under Title II of the ADA, at least three circuit courts of appeals have so held. Because Eleventh Amendment sovereign immunity does not extend to units of local government, by contrast, a Title II action against a county-operated public hospital would not face this barrier.
*276 c. Does Disability Discrimination Law Reach Medical Treatment Decisions?
The foregoing discussion suggests that federal law prohibiting disability discrimination extends to most physicians in the United States, either because the physician receives federal financial assistance, owns or operates a public accommodation or is the agent of a public entity. While remedial issues may prove problematic, as discussed above, it is clear that physicians cannot legally discriminate against persons with disabilities. Thus, a physician cannot refuse to provide treatment to an individual with a disability without running afoul of these laws.
The more precise question--whose answer is far murkier--is whether legal prohibitions on disability discrimination apply at all to a physician's decisions regarding what medical treatment to provide. In other words, while Section 504 and the ADA clearly apply to prevent physicians from denying persons with disabilities access to their offices, it is questionable whether those laws apply to the physician's diagnostic and therapeutic decisions for a disabled patient whom the physician has agreed to treat. Indeed, a line of cases decided under Section 504 concludes that the law cannot properly be applied to allegedly discriminatory clinical decisions. The broader question of whether any civil rights laws can appropriately be applied to medical decisions will be addressed below. The question, however, has particular salience with respect to disability discrimination law because in many cases the patient's disability will itself be the impetus for the patient's seeking medical attention. In that case, how can the treatment provided to the patient be meaningfully compared to the treatment provided to another patient without the disability in order to determine whether discrimination occurred? More generally, is a court equipped to assess how and to what extent a physician legitimately can consider a patient's disability in making complex medical treatment choices?
Some cases indicate that disability discrimination law simply does not apply to medical treatment decisions and that courts should defer to physicians' *277 medical judgments. A number of cases decided after the passage of the ADA, however, recognize that disability discrimination law may place some limits on physicians' medical decisions. Although these cases suggest that some courts may be willing to entertain a disabled plaintiff's claim that discriminatory medical treatment decisions violate Section 504 or the ADA, other courts may remain reluctant even to consider such a claim.
4. Age-biased Decisions
Only a few years after using Title VI as a model for Section 504 of the Federal Rehabilitation Act in 1973, Congress turned again to Title VI as a model with its enactment of the Age Discrimination Act of 1975 (the Act). The purpose of the Act is to prohibit age-based discrimination in federally funded programs, and its basic prohibition largely tracks the statutory language of Title VI and Section 504. Thus, many of the points made regarding when physicians may be deemed recipients of federal financial assistance under those statutes apply as well to the Age Discrimination Act.
*278 With respect to the Act's enforcement, the courts are divided on the availability of a private right of action for violating the Act. Courts rejecting a private right of action cite Congress's expectation that the Act “be enforced almost exclusively by” administrative action. Moreover, even when courts recognize a private right of action, a plaintiff alleging a violation of the Act must first exhaust the administrative remedies required by the statute or face dismissal of her claim. Regardless of whether a plaintiff can bring a private damages action, the Act authorizes an “interested” person to seek injunctive relief against the discriminatory practice in federal court. As with injunctive relief under other statutes, the plaintiff must establish her standing.
Although the Age Discrimination Act does not expressly exclude medical decisions from its coverage, the prospect of applying the age discrimination law to medical treatment choices raises concerns similar to the concerns, discussed above, regarding the appropriateness of applying disability discrimination law to medical decisions. Age, like disability, may sometimes be a clinically relevant characteristic. Nonetheless, one commentator has argued forcefully against excluding medical decisions per se from the scope of the Act, noting that the Act effectively creates a presumption against the use of age as a factor in decision making when that use is based on “untested generalizations.” Upon examining the use of age as a criterion for heart transplant candidacy, however, even this commentator recognizes the challenge of applying a civil rights law to a physician's treatment decisions for an individual patient, as compared to a program's adoption of age as part of a blanket policy. Thus, the substantive *279 applicability of the Act to individual diagnostic or therapeutic decisions remains unsettled.
5. Plugging Gaps with State Anti-discrimination Laws
The preceding description of the various federal statutes that potentially may apply to prohibit biased medical decisions reveals that existing civil rights laws may address some, but far from all, of the biased decision making that may occur. The inadequacy of federal law in addressing this form of discrimination is particularly evident when it comes to gender-biased medical decisions. Unless the doctor who made the biased decision either acted as an agent of the patient's employer, such that the treatment itself can be characterized as a term of employment, or made the decision as a program official at an academic medical center, gender-biased medical decisions appear to run afoul of no federal law. In some states, however, state laws prohibiting discrimination in places of public accommodation may fill this gap in coverage if “public accommodation” is defined to include medical offices.
Similarly, state laws conceivably could provide protection against discriminatory medical treatment decisions in areas, such as sexual orientation discrimination, where no federal protection exists. Several states prohibit discrimination by public accommodations on the basis of sexual orientation, and these state laws might provide some redress to a patient whose physician's medical judgment was clouded by a bias against gays or lesbians.
*280 B. General Barriers to the Effectiveness of Civil Rights Approaches to Physician Bias
1. Lack of Coherence and Comprehensiveness
The previous section's discussion of the various federal statutes that a plaintiff might employ to seek redress for a biased medical decision itself demonstrates a primary barrier to the efficacy of using civil rights statutes to address physician bias: The statutes themselves are diverse and characterized by variation with respect to the prohibited basis for discrimination, the entities subject to the law and enforcement mechanisms. Consequently, any attempted civil rights response must be tailored to the particular “flavor” of physician bias at issue in a specific case. The case of a racially biased medical decision prompts a different response from the case of gender-biased decision making, which prompts a different response from cases of disability or age-biased decisions. Thus, any response to the problem of physician bias grounded on federal civil rights laws will lack coherence. Moreover, because many instances of biased medical decisions do not constitute even an arguable violation of civil rights laws (for example, racially biased decisions made by a physician who receives no federal funding, or gender-biased decisions by most physicians), existing federal anti-discrimination laws do not offer a comprehensive approach to the problem of physician bias.
Admittedly, whether we view the civil rights approach's lack of coherence and comprehensiveness as problematic depends on our perspective on the problem of physician bias. If we view physician bias as objectionable only when the characteristic generating bias is a characteristic that also defines prohibited grounds for discrimination under federal law (e.g., race, sex, disability and age), and if we are satisfied that existing anti-discrimination laws sufficiently address those objectionable instances of biased medical decisions, only then would lack of coherence and comprehensiveness be untroubling. In other words, if we understand physician bias not as a general problem, but instead as a set of problems in specific contexts, then a set of legal responses targeted to those contexts may in fact be desirable. On the other hand, one who views biased medical decisions inclusively, as a general problem--albeit having particularly problematic manifestations for specific groups of patients--will find existing civil rights laws to be sorely inadequate for addressing the problem.
2. Challenges of Proving Intentional Discrimination
The lack of coherence and comprehensiveness of a civil rights approach to biased medical decision making calls into doubt that approach's effectiveness as a systematic response to physician bias. It is of no concern, however, to a patient whose claim of physician bias falls into one of the pockets of federal civil rights protection described above. To illustrate, an African-American Medicaid recipient who believes that his race influenced his doctor's choice for treating the patient's cardiac disease can easily *281 plead race discrimination by a recipient of federal funding and would encounter no coherence or comprehensiveness problems. This patient nonetheless faces a typically daunting--often well-nigh impossible--challenge of proving intentional discrimination on the doctor's part.
This challenge is comprised of two aspects. First, the plaintiff must prove that discrimination in fact occurred--that he received different medical treatment because of his race (or other prohibited characteristic) and not for some other reason. Second, at least under Title VI, the plaintiff must prove that the physician's discrimination was “intentional.” Although these two requirements are intimately related and typically are not assessed separately by courts, they may raise slightly different issues in the context of biased medical judgments. While courts have developed slightly varying standards for proving violations of the different anti-discrimination statutes discussed above, this section focuses on the challenge of proving a Title VI violation.
a. Proving Different Treatment Based on Race
A plaintiff who alleges that bias with respect to one of her personal characteristics affected her physician's choice of treatment is essentially claiming that her physician provided her with a treatment different from what he would have provided in the absence of that characteristic. Thus, an individual patient's claim of biased medical treatment is a claim of disparate treatment: The treatment choice was different because the patient was black, female, elderly or developmentally disabled. These claims are not likely to be framed effectively as disparate impact claims, which typically complain of the adversely disproportionate impact of a policy or practice that is facially neutral. Although some medical treatment decisions may be influenced by such policies or practices employed by institutional providers, payers or regulatory bodies, individual physicians *282 making treatment decisions typically form their decisions on a patient-by-patient basis without employing blanket policies directing the treatment choices.
How can a patient who alleges such different treatment prove that she in fact received different treatment because of her race? For example, let us hypothesize that a young black woman went to a hospital's emergency room with a broken leg. There, despite her complaints of significant pain, the emergency room doctor failed to provide her with any pain medication. Following the incident, she sues for a violation of Title VI, asserting that the physician's failure to provide her with adequate analgesia was based on her race. Courts hearing discrimination claims allow plaintiffs to prove their cases either by using direct evidence of discrimination or by producing circumstantial evidence of discrimination. Direct proof in the hypothetical case would be evidence that the emergency room physician, in deciding whether to prescribe pain medication, in fact weighed the patient's race as a factor in his decision. It is hard to imagine that a plaintiff often would be able to prove that the physician told her (or anyone else) that he was ordering or denying a particular treatment because she *283 was black. Nor is it likely that a physician's notes in a patient's medical chart would explicitly draw such a causal connection. Thus, direct evidence of different treatment based on race is likely to be quite rare.
Lacking direct evidence of race-based differential treatment, the patient may resort to circumstantial evidence to prove racially based discrimination. Circumstantial evidence allows a fact finder to infer from directly proven facts that the legally significant fact also exists. In essence, a case based on inferential evidence asks the factfinder to conclude that discrimination is the most plausible explanation for a particular proven set of facts. The Supreme Court has established a structure for litigating individual disparate treatment cases based on inference. Although the well-known McDonnell Douglas burden-shifting paradigm was developed in an employment discrimination case under Title VII of the Civil Rights Act, courts have adapted it to different contexts and different statutory schemes, including Title VI.
*284 So, to continue the hypothetical case described above, even if the patient who was denied analgesia for the pain from her broken leg cannot produce direct evidence that the doctor withheld analgesia because of her race, she nonetheless can seek to prove that her race is the most plausible explanation for the denial. She might seek to show that when other non-black patients came to the emergency room with a fractured leg and complained of pain, the defendant physician ordered analgesia. Statistical proof that this doctor tends to order pain medication only for non-black emergency room patients with fractured limbs could satisfy the plaintiff's burden of showing a prima facie case of discrimination. Similarly, she might seek to introduce evidence of statements or actions by the physician demonstrating that the physician harbored prejudice against African Americans or that he entertained stereotypes about their proclivity towards drug-seeking behavior.
Of course, under the burden-shifting paradigm the defendant physician retains the opportunity to present evidence of a non-race-based reason for failing to prescribe analgesia. For example, the physician might assert that the plaintiff did not complain of pain forcefully enough to draw his attention; he might claim that the patient was intoxicated at the time that she came to the emergency room and that therefore analgesia was contraindicated; or he may allege that the patient was uninsured and that the emergency department had a policy of not administering analgesia to uninsured patients who could not give proof of their ability to pay. Even if the physician articulates a legitimate, non-discriminatory reason for failing to prescribe analgesia, the plaintiff patient still has the opportunity to try to convince the trier of fact that the proffered reason was not the real reason, but was instead a pretext for discrimination.
*285 Describing the process by which a plaintiff might seek to prove a Title VI violation using inferential proof is straightforward enough, but such a plaintiff is likely to encounter several hurdles in trying to complete the above course. First, in the likely absence of a “smoking gun” showing direct evidence of racially motivated different treatment or evidence of the physician's generalized prejudice, a patient will need to employ statistical evidence to make her case. While statistical evidence can be difficult and expensive to develop in any case, the difficulty is multiplied when the necessary data involve the medical treatment of other patients.
As discussed above, courts are generally unwilling to allow discovery of the medical records of non-party patients in medical malpractice litigation brought by a patient. Some courts, though, will allow discovery if the plaintiff makes the case that information contained in non-party medical records is relevant and that all identifying information regarding the non-party patient can be redacted. In those cases, the court may find that the balance between the patient's need for the information and the risk of violating the confidentiality of medical records tips in the plaintiff's favor. In addition, a court may conduct the weighing process somewhat differently in a case alleging the violation of a civil rights law, for then a public interest must be factored into the calculation.
Although research reveals no published decision addressing the discoverability of patient records in a civil rights action, courts have addressed an analogous issue in the context of discrimination claims brought by physicians who have been subjected to adverse peer review action. The records of medical peer review bodies are generally protected from discovery by state law evidentiary privileges; the purpose of this protection is both to encourage physicians to participate in reviewing the competency and professionalism of their peers and to enable the free and frank sharing of information as part of that process. In a number of *286 recent cases, however, courts have found that the medical peer review privilege does not prevent discovery of peer review records in federal actions alleging civil rights violations. Indeed, in one case in which a physician alleged that the termination of his staff privileges was motivated by his race and national origin, the court allowed the physician to discover not only his own peer review records, but also records containing peer review information regarding other physicians at the hospital. In declining to recognize the evidentiary privilege in this context, the court reasoned:
The evidence [the plaintiff] seeks is crucial to his attempt to establish that he has been the subject of disparate treatment on the basis of race and ethnicity. To prove his allegations of disparate treatment, [the plaintiff] must compare the proceedings in his case to those involving similarly situated physicians. The interest in facilitating the eradication of discrimination by providing perhaps the only evidence that can establish its occurrence outweighs the interest in promoting candor in the medical peer review process. A plaintiff seeking to discover evidence of a physician's treatment of other similarly situated patients in a civil rights action thus may be able to effectively analogize his request for discovery to the peer review context in which courts have refused to protect records from discovery.
Yet the difficulty of obtaining evidence from which discrimination might be inferred is not the only barrier to recovery faced by a patient-plaintiff suing a physician for biased medical treatment under a federal anti-discrimination law. Even if the plaintiff is able to present statistical evidence derived from patient records showing, for example, the physician's pattern of treating black patients differently from non-black patients, the physician-defendant undoubtedly will assert that some factor, or combination of factors, other than race led him to choose the treatment provided to this particular patient. Just as the complexity of clinical decision making makes it difficult to eliminate potentially confounding variables *287 in researching the causes of health treatment disparities, so too does that complexity complicate the civil rights plaintiff's task in isolating race (or any other group characteristic) as a causative factor. Because medicine is an inexact science and physicians typically take a wide variety of facts into account in exercising clinical judgment, the physician's assertion of a legitimate non-discriminatory reason for the selected treatment will likely prove difficult to rebut without some direct evidence of bias. Thus, even a plaintiff who is allowed to admit all available evidence suggesting discriminatory medical treatment often will fail to persuade the fact finder that any treatment differential was in fact based on race, rather than some other factor.
b. Proving that Discrimination was Intentional
The foregoing discussion has focused on the challenge inherent in trying to prove that a patient's race did in fact influence a physician's decision regarding the medical treatment provided to (or denied) the plaintiff. But even a patient-plaintiff who can convince a court that her physician provided her with different medical treatment because of her race will not necessarily succeed on her civil rights claim. In order to succeed, she must also prove that the discrimination was intentional. The Supreme Court recently reaffirmed that a private plaintiff suing to enforce Title VI must show intentional discrimination. According to the Court, Title VI itself “proscribes only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment.” Consequently, a plaintiff must point to evidence of racially discriminatory intent or purpose. So how can a plaintiff show that her physician, when ordering different medical treatment for the plaintiff because of her race, intentionally discriminated?
Admittedly, the question posed rings confusing: After all, isn't all disparate treatment racial discrimination intentional? How can one person unintentionally treat another differently because of the other's race? Doesn't the causal relationship indicated by “because of” also demonstrate *288 the actor's intent to discriminate? In many cases, the answer to the final question is “yes.” In others words, the actor found to have considered race in making a decision is also found to have done so consciously and, therefore, intentionally. If she knows she is taking race into account in making her decision, then she is intentionally discriminating. But what if she is not aware that she is taking race into account?
The question of what exactly the Supreme Court means when it requires proof of “intentional” discrimination has occupied a number of scholars and produced a rich literature examining whether liability for violating anti-discrimination laws should extend to actors whose acts of differential treatment flow from subconscious biases. The seminal work in this area is Charles Lawrence's The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, which draws on psychiatric and psychological literature to argue that most contemporary racism is embodied more in unconscious stereotyping than in conscious bigotry. Lawrence recognizes that existing jurisprudence effectively relegates acts influenced by unconscious racial stereotyping to a sort of intent limbo:
Traditional notions of intent do not reflect the fact that decisions about racial matters are influenced in large part by factors that can be characterized as neither intentional--in the sense that certain outcomes are self-consciously sought--nor unintentional--in the sense that the outcomes are random, fortuitous, and uninfluenced by the decisionmaker's beliefs, desires, and wishes. Other scholars have built on Lawrence's work to examine the legal treatment of discrimination that might be deemed “negligent” or “accidental.”
A central premise of much of this literature reflects theories, developed by cognitive psychology, that characterize stereotyping as a natural, and indeed predictable, human response to the richness of information and stimuli in the surrounding environment. Thus, according to cognitive *289 theory, people whose mindset includes stereotypes or biases are not necessarily “prejudiced” against those groups about whom their minds have formed biases; indeed, people are unlikely to be aware of the bias's existence or its influence on their decisions. While a recent review of social science research into stereotyping and discrimination indicates that more recent studies find that motivation and affect may also contribute to unconscious discrimination, the reviewer still concludes: “No matter how the interaction of cognitive, affective and motivational factors occurs, social science research demonstrates that race and gender bias and prejudice resulting in discriminatory behavior are the result of unconscious, as well as conscious, phenomena.” According to these scholars, much of contemporary racial discrimination occurs without the discriminating decision maker being aware of race's influence on his decisions.
Most of the legal scholars who have concentrated their attention on the legal status of unconscious discrimination have done so in the context of asking whether liability for employment discrimination under Title VII should extend to unconscious disparate treatment of employees on statutorily forbidden grounds. These scholars have reached varying conclusions on that question, and the courts have not clearly resolved the question either. Moreover, although Charles Lawrence's article itself *290 focused on subconscious racism's role in equal protection analysis, the issue of whether unconscious discrimination might qualify as intentional discrimination sufficient to show a violation of Title VI and other Spending Clause legislation has not been extensively studied.
A full exploration of whether courts should find a Title VI violation when a recipient of federal funding treats a person differently because of his race, but is not conscious of the racial motivation, lies beyond the scope of this Article. This is the very question, however, that a court hearing a Title VI claim alleging racially biased medical decision making may be called upon to answer. It is doubtless possible that some physicians making clinical decisions consciously take a patient's race (or sex, age or disability) into account in a manner irrelevant to the patient's need for medical treatment. These physicians would appear to discriminate “intentionally” under any meaning of the word. Most commentators in the medical literature, however, concur that--to the extent that physician bias plays a role in producing documented disparities in the levels of different treatments provided--the bias is probably largely subconscious, so that physicians' judgments may be influenced by biases without the physicians' being aware of that influence.
*291 What result then follows--to return to the hypothetical posed earlier--if the fact finder concludes from the evidence that no factor other than race adequately explains why the emergency room physician failed to provide adequate analgesia to the black woman with a broken leg, but the fact finder also believes that the physician may not have been consciously aware that the patient's race influenced his decision? Scholars have laid the theoretical foundation for arguing that motivation or causation should be the determinative factor in identifying “intentional discrimination” (i.e., that discrimination is intentional if race motivated or played a causal role in producing the complained-of behavior) and that a plaintiff alleging discrimination should not be required to prove a conscious decision to discriminate. Whether a plaintiff alleging biased medical treatment could succeed in persuading a court to construct a decision upon this foundation, however, is another matter. Thus, even a plaintiff who can garner evidence sufficient to convince a court that her race influenced her doctor's choice of medical treatment may not be able to persuade the court that her physician's discrimination was intentional.
3. Judicial Reluctance to Intrude on Doctors' Judgment and State Regulation
A final problem with any attempt to invoke federal civil rights laws in response to biased medical decisions lies in the courts' reluctance to apply federal anti-discrimination law to a claim that the court views as essentially alleging poor quality or inappropriate medical care. This reluctance flows from two related sources: First, the courts are disinclined to take on the task of second-guessing professional medical judgment. Second, to the extent that a claim entails assessing the quality of care provided, courts emphatically proclaim that any such assessment should be conducted not as a matter of federal law, but as a matter of state law regulating the quality of medical care, i.e., as a medical malpractice claim.
As an initial matter, one might wonder why courts would characterize an action alleging biased medical decisions as essentially a complaint about poor quality care. This characterization, however, is in some sense accurate. It stands to reason that a patient who believes that she received superior medical treatment because of her race (i.e., she was discriminated “in favor of,” rather than “against”) is unlikely to sue her physician. *292 Accordingly, complaints of discriminatory medical judgments are likely to include--as part of the claim that the plaintiff was treated differently from other similarly situated patients--a claim that the treatment received was somehow inferior to and of poorer quality than that received by other patients. Indeed, commentators too have characterized evidence of racial disparities in medical treatment as evidence of poor quality of care. Recognition of the quality aspect implicit in a claim of discriminatory medical treatment, however, does not necessarily compel a court's unwillingness to address the alleged discrimination. So what explains the courts' reluctance?
One explanation lies in the courts' discomfort with questioning the soundness of medical judgment reflected in a medical treatment decision under any rubric other than medical malpractice. This discomfort is evident in cases alleging that medical choices violated disability discrimination laws. For example, in deciding that Section 504 of the Rehabilitation Act did not extend to medical decisions regarding disabled newborns, the Second Circuit rejected the government's assertion that a disabled newborn who had been denied life-saving surgery had thereby been subjected to discrimination. The court found that characterizing the medical decision as discriminatory tookan oversimplified view of the medical decisionmaking process. Where the handicapping condition is related to the condition(s) to be treated, it will rarely, if ever, be possible to say with certainty that a particular decision was ‘discriminatory’ . . . . Beyond the fact that no two cases are likely to be the same it would invariably require lengthy litigation primarily involving conflicting expert testimony to determine whether a decision to treat, or not to treat . . . was based on a ‘bona fide medical judgment’, however that phrase might be defined. Some other courts have followed the Second Circuit's lead and have simply declined to apply disability discrimination law to medical treatment decisions.
*293 Moreover, even those courts willing to entertain claims that medical choices violate disability discrimination law have shown significant deference to physicians' exercise of medical judgment. For example, in the recent case Lesley v. Hee Man Chie, the First Circuit addressed directly the question of the appropriate level of respect to be paid to medical decisions and sought to steer a middle course between “a rule giving physicians complete deference and a rule requiring a full-fledged inquiry into their diligence.” The “middle ground” standard chosen, however, remains quite deferential, allowing the plaintiff to challenge a medical decision under the Rehabilitation Act only if she can “show[ ] the decision to be devoid of any reasonable medical support.” As a practical matter, because of the wide variations in medical treatment patterns, only the most egregiously discriminatory (or negligent) medical decision is likely to pass the test of being “devoid of any reasonable medical support.” Under this standard, if a physician can point to any reasonable medical support for her treatment choice, she avoids liability even if bias in fact influenced her choice.
The court's analysis in Lesley also highlights the second aspect of courts' lack of enthusiasm for applying federal anti-discrimination laws to medical treatment decisions. Not only do the courts wish to avoid second-guessing a medical judgment, they also want to avoid applying federal statutes to an area of traditional state regulation: medical malpractice law. As partial justification for its refusal to scrutinize closely the defendant doctor's medical decision, the Lesley court reasoned:
[C]ourts should not probe so far into a doctor's referral decision as to inquire whether it was the correct or best decision under the circumstances, or even whether it met the standard of care for the profession. Lest questions of medical propriety be conflated with questions of disability discrimination, it must take *294 more than a mere negligent referral to constitute a Rehabilitation Act violation. Thus, if a plaintiff alleging a discriminatory medical treatment decision stresses too strongly the inferiority of the treatment provided, he risks the court's rejecting his claim as an attempt to federalize malpractice law.
This judicial discomfort with applying federal statutes to patients' claims that include any complaint about the quality of medical care received is not confined to the realm of anti-discrimination claims. For example, courts hearing cases alleging violations of the Emergency Medical Treatment and Active Labor Act --the federal “anti-dumping” law for hospitals--have consistently proclaimed that the Act was not intended to create a federal malpractice action for negligent screening or treatment in hospitals and thus does not apply to complaints of negligent or poor quality care provided by emergency department personnel. Similarly, the Supreme Court, in rejecting a patient's claim that a managed care organization's use of financial incentives for physicians breached fiduciary duties under the Employee Retirement Income Security Act, recently emphasized the risk of replicating state malpractice actions: “[F]or all practical purposes, every [such] claim of fiduciary breach by an HMO physician . . . would boil down to a malpractice claim, and the fiduciary standard would be nothing but the malpractice standard traditionally applied in actions against physicians.” In light of these cases, it would hardly be surprising to find courts presented with federal civil rights actions alleging discriminatory *295 medical decisions concluding that the plaintiff's real complaint is with the quality of medical care received and that such complaints are sound in state medical malpractice law and thus are not properly adjudicated under federal statutes.
Both facets of the courts' reluctance to apply federal civil rights laws to medical decisions also appear in the passive stance that federal regulators have adopted towards applying those laws to treatment decisions. The U.S. Commission on Civil Rights, as part of its 1999 report on health care disparities, reported on the policy development and rulemaking processes of DHHS's Office of Civil Rights (OCR) with respect to Title VI enforcement. One failing that the Commission noted was OCR's failure to articulate clearly what “discrimination” in the health care context means, particularly when it comes to determining what “equal access to quality health care” requires. From the Commission's viewpoint, equal access requires that all Americans receive medical care of equal quality. However, OCR's legal staff questioned both the agency's jurisdiction over denial of equal access claims and the agency's ability to assess the equality of access so defined, citing an inability to judge what appropriate care is. As the Commission reported: “Several staff noted the inability to obtain the medical expertise needed to challenge a [health care provider's] medically related rationale, suggesting the OCR was not equipped to make such determinations.” Thus, the government agents charged with enforcing the civil rights laws in health care settings appear to share the courts' reluctance to get involved in cases alleging discrimination in medical treatment.
This reluctance may pose an insurmountable obstacle for a civil rights plaintiff alleging discriminatory medical treatment. A court that detects in her complaint (or her proof) an allegation that the plaintiff received inferior medical care may well send her packing to state court with instructions to file a malpractice claim, notwithstanding the plaintiff's central allegations of discriminatory treatment. Because of the improbability, discussed in Part IV, that medical malpractice law will provide many such *296 plaintiffs with an avenue for redressing biased decisions, however, these instructions may leave a patient whose physician made biased treatment decisions without any legal recourse.
VI. Riding the Currents
As stated earlier, a central purpose of this Article is to consider whether patients who have been the victims of biased medical decisions have an avenue for obtaining legal recourse. The analyses in the preceding two Parts suggest that those patients' prospects of obtaining a legal remedy through either a civil rights action or an action alleging breach of some professional duty are fairly bleak. Only those patients who fall within a class protected by a civil rights statute that arguably applies to medical decisions can even state a claim, and then they have to prove intentional discrimination on the part of the defendant physician. While victims of overtly biased decisions may thus be able to recover, most patients will have trouble proving intentional discrimination unless courts are willing to entertain the premise that discrimination fueled by subconscious bias can be deemed intentional. By contrast, an action based on the defendant physician's violation of some professional duty is theoretically open to all patients. As a practical matter, while medical malpractice and informed consent actions may allow patients to recover when bias leads to substandard treatment or disclosure, the thrust of those causes of action would be the physician's substandard care; physician bias is essentially irrelevant to liability. Although a claim alleging that biased medical decision making violated a doctor's fiduciary duty to her patients better tracks the wrong claimed, the law regarding physician liability for breach of fiduciary duty is fairly embryonic, as is the law regarding the availability of dignitary damages against physicians in the absence of physical injury. Thus, recovery on these grounds in any but the most blatant and egregious cases would require significant development in these areas.
The conclusion that existing law does not offer a clear avenue of redress for all patients who are the subjects of biased medical decisions, however, does not negate the importance of the potential for liability in these areas. Even if the practical challenges of proving discrimination and recovering dignitary damage prevent this Article's outlines for imposing liability for biased medical decisions from translating into actual recoveries for patients in a large number of cases, recognition of the mere potential for recovery has value. This Article's message is that whatever the number of biased medical decisions, the operation of bias--whether conscious or unconscious--is wrong and may be grounds for imposing liability. The near invisibility of the practice of biased medical decisions does not justify a tacit legal acceptance of those decisions. Whether biased medical decisions are common or rare, they present a problem that the law may play *297 some role in addressing--even if only by calling medicine's attention to the immediacy of the problem for individual doctors.
In the short run, the most effective role of law in addressing bias in clinical decision making may lie precisely in flagging doctors' attention to the need to scrutinize their own decision-making processes more carefully to screen out any biases. Many of the editorial comments in the medical literature on treatment disparities call for self-reflection by physicians as they make medical decisions. In 1990, the AMA's Council on Ethical and Judicial Affairs called on physicians to “examine their own practices to ensure that inappropriate considerations do not affect their clinical judgment.” Perhaps a few legal judgments against doctors for biased decisions, even if in the more egregious cases, might add significant force to these aspirational statements. Although some research raises questions about the ability of individuals to identify and counteract the subconscious biases that infect their decisions, other research indicates that persons who seek to act fairly may be able to counteract the influence of unconscious bias on their decisions. Thus, physicians' awareness of the mere potential for legal liability might serve to ignite their willingness to spend the time and emotional energy required to examine their own decision-making processes with an eye to detecting possible biases. In the long run, if this (admittedly optimistic) forecast comes to pass, then the development of a more thorough-going and inclusive system of liability for biased medical decisions may seem less necessary.
This Article has focused on surveying the evidence of biased medical decisions and identifying possible legal responses to those decisions, as well as the shortcomings of those responses under current law. Notwithstanding the conclusion that existing law will only rarely offer any effective remedy to a patient who is the victim of a biased medical judgment, some signs of hope-- both for improving patients' remedial prospects and for reducing the role that physician bias plays in medical decisions--can be found in currents already flowing in the areas of civil rights enforcement and medical quality improvement. A brief consideration of how these currents might feed into efforts both to hold doctors legally accountable for their biased decisions and to decrease the incidence of biased medical decisions follows.
First, policy makers and commentators have already issued calls for more aggressive enforcement of civil rights laws in response to evidence of *298 racial and ethnic disparities in medical care. One action sought is for the federal government to articulate standards for what constitutes discrimination in the context of health care treatment. In addition, a common refrain that is gathering volume is the need for federal agencies to begin collecting data regarding the provision of medical services to members of racial and ethnic minorities in order to permit assessment of compliance with those standards. Numerous commentators have emphasized the crucial role of collecting and reporting data that track patient race in enhancing Title VI enforcement efforts. Likewise, a recently issued report commissioned by the Commonwealth Fund concludes that DHHS must assume a leadership role in mandating the collection and reporting of racial and ethnic data by all programs supported by departmental funds. This sound and fury over the importance of data collection might well signify nothing, however, were it not to capture the attention of policymakers who have authority to compel the data collection. It did so in 2000, when Congress enacted the Minority Health and Health Disparities Research and Education Act. Among this Act's provisions is a charge to the National Academy of Sciences to study DHHS's existing data collection and reporting systems and practices and to report to Congress on what data is needed to support an effective response to racial and ethnic disparities. Although this report was not submitted by the Act's November 2001 deadline, it is expected to recommend a data collection system for DHHS.
A commonly articulated purpose for proposed data collection efforts is to enable DHHS to carry out its administrative responsibility of enforcing Title VI. Certainly, data regarding racial and ethnic disparities in the provision of services by particular providers would enable the agency's Office of Civil Rights to target those providers for enforcement action. Public *299 availability of this data, however, would also enable both quasi-governmental entities such as the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), and private bodies to use the information in their certification and purchasing decisions. Within the past year, groups both of health plans and of major self-insuring employers have announced plans to establish incentive systems that will financially reward providers who meet certain quality standards. If provider-specific data regarding health services provided to racial and ethnic minorities becomes available, groups of private insurers or health care purchasers will similarly be able to establish financial incentives for providers to reduce disp
Moreover, the public availability of such data could ease significantly the burden for some plaintiffs attempting to prove racially biased medical decisions in civil rights actions. Although data showing race-based disparities in a physician's prescription of a specific treatment does not directly prove that the physician's treatment decision was biased by a particular patient's race, it can provide circumstantial evidence of bias from which discrimination against the plaintiff may be inferred. The difficulty and expense in collecting such data currently erects a major obstacle for plaintiffs considering a private Title VI action against a health care provider; that obstacle could be eliminated by the governmental collection and reporting of data.
Finally, the reporting of provider-specific data regarding racial and ethnic disparities could prove a potent tool in drawing physicians' attention to hitherto unrecognized patterns in their own clinical decisions. If most physician bias that operates today is indeed subconscious, then most physicians who make biased decisions do not perceive their own biases. Presenting a cardiologist with data showing, for example, that she has ordered bypass surgery significantly more often for her white patients than for her black patients may motivate her to probe more consciously how she makes decisions between surgical and non-surgical interventions. And if a good faith desire to promote patient welfare doesn't sufficiently motivate physician self-reflection, concern regarding the potential for adverse action by a federal agency, private health plans and individual patients *300 may add the necessary encouragement. Thus, increased federal data collection and reporting may serve not only to enable more vigorous administrative enforcement of civil rights laws, but may also support both patients' private remedial actions and physicians' efforts at self-policing.
A second current that is gaining momentum within the medical community may also feed into efforts to reduce the incidence of biased medical decisions. The past several years have witnessed skyrocketing public attention to issues of health care quality, and a variety of proposed approaches to improving the quality of patient care have issued forth. In addition to increased use of “report cards” that contain provider-specific quality information that can be used by large purchasers of health care services, another approach to improving quality is the push for evidence-based medicine. This movement seeks “to evaluate the safety, effectiveness, and cost of medical practices using tools from science and social science and to base clinical practice on such knowledge.” In short, evidence-based medicine emphasizes medicine's nature as a science, rather than an art.
The movement towards evidence-based medicine figures prominently in a recent report issued by a committee of the Institute of Medicine, Crossing the Quality Chasm: A New Health System for the 21st Century. The authors of the report undertake no less daunting a task than proposing an “agenda for redesigning the 21st-century health care system.” Notably, two of the six aims that the authors articulate for 21st-century health care are that it should be both effective (“providing services based on scientific knowledge to all who could benefit and refraining from providing services to those not likely to benefit”) and equitable (“providing care that does not vary in quality because of personal characteristics such as gender, ethnicity, geographic location, and socioeconomic status”).
The Institute of Medicine report highlights a decrease in practice variations as one desired outcome of a move towards scientifically grounded clinical practice. For if patients receive care based on the best existing medical science, then “[c]are should not vary illogically from clinician to clinician or from place to place.” Rather than leaving treatment *301 decisions to the influence of local practice styles or a physician's personal experience or training, proponents of evidence-based medicine assert that incorporating scientific evidence into widely disseminated clinical practice guidelines will give individual practitioners the ability to practice evidence-based medicine. The central purpose of clinical practice guidelines, which may be issued by professional medical societies, government bodies or health care payers, is to inform physicians about what treatment is appropriate for a specific medical condition or constellation of symptoms.
The connection between using evidence-based medicine to improve the quality of patient care and using evidence-based medicine to decrease the incidence of biased medical decisions is straightforward. As discussed in Part II, disparities in the medical services rendered to different patient groups are particularly likely when the treatment for a particular condition is discretionary, i.e., when it is not clear what treatment is appropriate for the condition. Through the development of guidelines incorporating the best available scientific evidence, however, the number of conditions for which the choice of treatment is discretionary is reduced, and thus the opportunities for bias to influence the choice of treatment are similarly decreased. Concededly, because it is impossible for clinical guidelines to account for and address all the possible variations in the clinical details of specific patients, clinical guidelines will never entirely eliminate physician discretion. Commentators have also raised concerns about the quality of some guidelines and the ability of developers to keep practice guidelines current with advances in scientific knowledge. Nonetheless, a systematic effort to replace physician discretion with science-based guidelines seems likely to shrink many existing disparities.
Moreover, in contrast to efforts to increase data collection regarding racial disparities in order to invigorate civil rights enforcement activities, efforts to promote evidence-based medicine --if they deliver on their supporters' claims--stand to decrease the operation of all types of bias, as well as to improve the quality of patient care generally. Thus, its proponents might characterize evidence-based medicine as a rising tide that raises all (patients') ships. While riding the civil rights current promoting increased *302 data collection may allow targeted attacks on racially and ethnically biased medical decisions, riding the evidence-based medicine current may enable a broader assault on suboptimal care generally.
Fortunately, these two contrasting approaches do not appear to be incompatible. Although it has been argued, in the context of the development of informed consent doctrine, that increasing physicians' potential legal exposure to patients ultimately works to the detriment of patients by diminishing the level of trust in a patient-physician encounter, a recognition of a physician's legal accountability for biased decisions seems unlikely to produce such results. Rather than motivating physicians to replace real conversation with a legal form entitled “informed consent,” the existence of a “discriminatory medical decision” cause of action under civil rights statutes should motivate doctors to identify relevant clinical information about their individual patients and to elicit those patients' actual preferences, rather than employing group-based stereotypes. Of course, as Sidney Watson astutely points out, a civil rights enforcement approach to health care disparities focuses--perhaps counterproductively--on backwards-looking “blaming and sanctioning” rather than on moving forward to design systems that maximize the likelihood that patients will receive unbiased advice.
And perhaps, as the project of considering how best to decrease the incidence of biased decisions continues beyond this Article, we may conclude that holding physicians legally liable for the operation of bias that occurs on a subconscious level is not productive. On the other hand, we may conclude that holding physicians to a high standard of screening their own decisional processes to prevent any “negligent discrimination” is appropriate. What is clear is that current discussions of race-based data collection and the role of evidence-based medicine provide fertile ground for further exploring potential solutions to the problem of biased medical decision making.
VII. Conclusion
Published studies suggest that bias based on a clinically irrelevant characteristic of a patient at times influences some physicians' medical judgments. These biased medical decisions can have adverse impacts on the particular patient who is the victim of the biased decision, as well as on the public's health more broadly. It is questionable, however, whether either existing civil rights laws or professional liability actions provide victims of biased medical decisions with an avenue for obtaining effective legal redress. Civil rights approaches fail to deal with the full spectrum of *303 biased medical decisions and leave plaintiffs struggling to convince courts that subconscious bias can produce intentional discrimination. Professional liability approaches, by contrast, seem uncomfortable scrutinizing the physician's subjective motivation for treatment choices and typically demand concrete physical injuries as a predicate for patient recovery. While existing legal frameworks do not provide ready remedies for victims of physician bias, developments in the areas of civil rights enforcement and medical quality improvement may support future efforts to respond to the problem of physician bias.
Florida Bar Health Law Section Professor of Law, Florida State University College of Law. B.A., University of Virginia, 1984; J.D., Vanderbilt University, 1987.
