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.