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.