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.