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.
