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Kimani Paul-emile 

From: Kimani Paul-emile, Patients' Racial Preferences and the Medical Culture of Accommodation, 60 UCLA Law Review 46 (December, 2012) (196 Footnotes0

      In early November 1931, Juliette Derricotte, Dean of Women at Hampton and Fisk College and former executive of the national YWCA, sustained severe injuries during a car accident. The closest hospital advertised “no Negroes,” so an ambulance was summoned from sixty-six miles away to take her to a hospital that treated black patients. She died of her injuries before she could receive treatment. Similarly, in 1940, John McBride was denied admission at two local south Florida hospitals after suffering a bullet wound. The only two hospitals in the area that accepted black patients were miles away in Miami and West Palm Beach; thus McBride died without hospital care.

      These tragic accounts are stark reminders of a history that many Americans believe is long past. Yet, race discrimination in the provision of healthcare is not a relic of the Jim Crow era. Discrimination still occurs quite frequently, and healthcare providers actively and routinely facilitate it. This modern-day race discrimination assumes a form distinct from the type that led to the deaths of Juliette Derricotte, John McBride, and countless others, and it is in many ways more complex, nuanced, and perplexing. When we think of race discrimination in healthcare today, we tend to think about race-based health disparities and bias exhibited by physicians or other providers, but new studies illuminate a different kind of race discrimination in the hospital setting. Today, rather than turning patients away based on race, healthcare providers are instead facilitating patients' racial biases by enabling them to turn physicians away based on race. In other words, healthcare providers accommodate patients' racial preferences.

      Consider two examples: An older patient of Korean ancestry enters the hospital in very poor health with a condition that is difficult both to diagnose and to treat. He is offered a treatment regimen that promises a better than 50 percent chance of recovery with minimal risks, yet he nevertheless refuses further medical intervention. The hospital thus stops all treatment and the patient would likely have died had a member of the hospital medical staff not noticed that the patient had also requested full cardiopulmonary support should he go into arrest. When confronted with this seeming contradiction, the patient confesses that he does not want to be treated by the assigned physicians, who were of Japanese descent. The physicians accede to the patient's wishes, he accepts treatment, and he makes a full recovery.

      A patient with a potentially life-threatening cardiovascular disorder is taken to the hospital for surgery. Prior to the procedure, the patient's husband demands that the hospital prohibit black men from entering the operating room during the surgery. The surgeon accommodates the patient's request and later explains that he did so because he did not believe that the patient would have otherwise gone through with the surgery. Both examples are real-life accounts of healthcare providers yielding to patients' racially biased demands. Such requests by patients are not only quite common but also are often accommodated quietly.

      A recent study shows that some patients refuse or demand treatment based on the racial identity of the assigned healthcare provider and that providers are likely to accede to these patients' preferences. Research also reveals that patients of all races make race-based choices about who may treat them in hospitals. Many healthcare providers accommodate these requests in circumstances in which the patient has no option for care other than a hospital outpatient department and in situations in which a patient is in need of emergency services. Indeed, according to Herbert Rakatansky, MD, former Chair of the American Medical Association's (AMA) Council on Ethical and Judicial Affairs, “In a life-threatening situation, you would have to abide by the patient's request.”

      The culture of accommodation in the hospital setting has created a clash of competing medical ethics and legal norms: evidence-based and patient-centered approaches to medical care versus accepted notions of racial equality and antidiscrimination principles. Medical ethics, for example, embraces patient-oriented strategies for the provision of care, including the dictates of the Hippocratic Oath, as well as informed-consent rules and common law battery, which make clear that competent patients have a right to refuse unwanted medical treatment. Yet, while the AMA's Code of Medical Ethics maintains that physicians “may not decline to accept patients because of race, color, religion, national origin, sexual orientation, gender identity, or any other basis that would constitute invidious discrimination,” the medical profession does not have a specific policy regarding healthcare institutions accommodating patients' racially biased requests.

      Likewise, the law offers little guidance on how to address this practice. Although several titles of the 1964 Civil Rights Act (CRA) speak to similar types of discrimination--including Title VII, which prohibits employers from catering to the racially biased requests of their clientele--they do not offer a clear legal directive on the issue of hospitals acceding to the racial preferences of their patients. The only case that comes close to approaching this issue is Chaney v. Plainfield Healthcare Center, in which the Seventh Circuit Court of Appeals held that Title VII bars nursing homes from acceding to their residents' racially discriminatory requests with respect to certified nursing assistants. But, for reasons explained in Part III, this case does not meaningfully attend to the matter of hospitals facilitating patients' racial preferences regarding their choice of physician.

      This widespread phenomenon raises difficult questions about how we should think about race, health, and individual autonomy in this context. Should we, for example, think the same way about all the types of preferences expressed? Does the fact that some racial preferences evoke the types of discrimination long outlawed by civil rights statutes render patient racial accommodations problematic? Are there reasons to treat the different examples differently? Questions such as these pose a fundamental dilemma for law, medicine, and ethics. This Article is the first to address these questions and bring into the legal literature an examination of the medical practice of race-based patient accommodation.

      At first blush, antidiscrimination law and general racial-equality principles would seem to bar hospitals from accommodating patients' racial preferences despite the quiet persistence of this practice. This Article makes the counterintuitive claim, however, that the law does and should permit this practice, and that accommodating patients' racial preferences actually advances racial equality. It demonstrates that there are, in fact, many good reasons to allow hospitals to accommodate patients' racial preferences. Recent empirical data on physician-patient race concordance (the ability of a patient to be treated by a healthcare practitioner of the same racial background, ethnic background, or both) show that permitting hospitals to accede to their patients' racial preferences may not only alleviate race-based health disparities but also constitute a life-saving measure for many racial-minority patients. I contend, therefore, that in the absence of countervailing law or of evidence that accommodating expressions of racial preferences would compromise care, and in light of the significant health benefits conferred by this practice, the accommodation of patients' racial preferences with respect to their choice of physician should be preserved in the hospital setting.

      Legal scholars have long debated ways to deal with race in several contexts, particularly in the realms of criminal justice, housing, and education. Relatively little attention, however, has been paid to the ways in which race is deployed in healthcare. This is particularly worrisome because issues of race can affect both patient care and health outcomes. And to the extent that these issues are considered, the focus has been on race-based health disparities and on bias by physicians and other healthcare providers. Yet there has been no analysis in the legal literature of the propriety of healthcare institutions acceding to individual patients' racial prejudices.

      Scholars in other fields, primarily medicine and public health, have attempted to examine this phenomenon empirically by assessing its prevalence, the contexts in which these preferences are exercised, and the connection between patients' preferences and both healthcare utilization and health outcomes. These scholars have tended to base their analyses in autonomy and informed consent, but this literature has not endeavored to address antidiscrimination law and norms.

      This Article, therefore, attempts to advance our understanding of this phenomenon by evaluating federal laws, antidiscrimination norms, evidence-based medical practices, and medical ethics principles in order to draw important conclusions about the phenomenon's legal propriety and medical efficacy. In so doing, the Article offers critical insights into why a form of discrimination that is rightly prohibited in other contexts should be tolerated in the hospital setting.

      The remainder of this Article proceeds as follows. Part I investigates the hospital practice of bowing to patients' race-based requests and the motivation behind physicians' willingness to do so. To this end, Part I examines the first major empirical study to address how physicians respond when they are asked to make compromises to meet patients' racial preferences.

      Part II maps the prevailing medical ethics principles and legal doctrines that operate as default rules governing a patient's right to refuse unwanted medical treatment, including the doctrines of informed consent and common law battery. This Part also addresses the Emergency Medical Treatment and Active Labor Act (EMTALA), which requires hospitals to provide a medical screening examination and medical treatment, if necessary, to any individual who comes to a hospital emergency department requesting treatment for an emergency medical condition. Part II, thus, lays the groundwork in medical ethics for considering the legality and propriety of allowing healthcare providers to submit to a patient's request for or refusal of treatment by a physician of a particular race.

      Part III addresses the antidiscrimination laws that may speak to the accommodation of patients' racial preferences, including Title II, which prohibits commercial entities from catering to the racially biased requests of customers; Title VI, which prohibits race discrimination by any entity receiving federal funds; and Title VII, which precludes employers from acceding to the discriminatory preferences of their clientele. This Part demonstrates, first, that there is no clear legal directive on the issue of hospitals accommodating patients' racial preferences. Second, building on an analysis of recent empirical data on physician-patient race concordance and medical best practices, Part III argues that this practice does not constitute the type of discrimination that these laws were enacted to address. In so doing, this Part demonstrates the ways in which bowing to patients' racial preferences actually constitutes an effective means of improving minority health outcomes, alleviating health disparities among racial groups, and addressing racial subordination in the physician-patient relationship.

      The practice of hospitals accommodating patients' racial preferences, however, is not without its troubling aspects. Therefore, although Part IV argues that patients' race-based requests should be respected in the hospital context, it also acknowledges the difficulties attendant to indulging such requests, and it concludes by proposing policy solutions designed to alleviate the need to yield to patients' racial preferences over the long term.