Professor Says Only Law Can Cure Bias, Racism in Health CareMarch 18, 2016 |
WASHINGTON â When it comes to eliminating the racial disparities that plague Americaâs health care system and cause Blacks to âlive sicker and die quickerâ than Whites, University of Colorado law professor Dayna Matthew believes the cure is to be found in the law.
Â âLaw changes social norms and the social norm needs to be changed in this country,â Matthew said during a lecture at Politics & Prose, a downtown bookstore where she discussed her recently released book, âJust Medicine: A Cure for Racial Inequality in American Health Care.â
Â âChanging the social norm matters. (In) Brown versus Board of Education, we changed the social norm about explicit prejudice and racism in this country,â Matthew said of the landmark decision that ended legal segregation in Americaâs public schools. âWe need to change the social norm about implicit, unconscious racism, unintentional racism also.â
Â Matthew contends that Americaâs health care system is beset by unconscious bias and implicit racism. To bolster her point, she cited a study by former U.S. Surgeon General David Satcher and others that found that an estimated 84,000 âexcess deathsâ could be prevented each year in the United States if the Black-White âmortality gapâ were eliminated.
Â She also cited âUnequal Treatmentââan Institute of Medicine study that found that racial and ethnic minorities get a lower quality of health care in the U.S.âand other studies that discovered that physicians who were found to have implicit bias tend to prescribe inferior treatment plans to patients of color.
Â To eliminate such disparities, Matthew espouses making changes with respect to the Civil Rights Act of 1964.
Â First, Matthew said, implicit or unconscious bias or unintentional racism should become âactionableâ under the act.
Â Second, she said, the US Supreme Court should reverse Alexander v. Sandovalâa 2001 case in which the court decided that, under Title VI of the Act, private individuals can fight intentional discrimination by bringing âdisparate treatmentâ claims but may no longer bring âdisparate impactâ claims based on unintentional discrimination that have a statistically demonstrated discriminatory effect on minorities, as she writes in her book.
Â âProving intentional discrimination is nearly impossible when few Americans are careless enough to create an evidentiary record of outright bigotry,â Matthew writes in Chapter 1, titled âBad Law Makes Bad Health.â
Â âThis is one of the gifts that our dearly departed Justice Scalia left us,â Matthew quipped during her talk. âWe have to replace the private cause of action that worked so well with respect to explicit racism so that itâs available as a cause of action pertaining to implicit racism.â
Â Matthew is cognizant of the fact that there will be critics to her approach.
Â âHow do we pattern it so that everyone who has a negative thought is not sued in the system that Iâm proposing?â Matthew asked on behalf of her skeptics. âWe employ a negligence standard in the Title VI regime,â she said in answering her own question in legalese.
Â âAnd the negligence standard simply says, if you as an institution or individual have done what is reasonably shown to address implicit bias, you have a perfect defense to a Title VI cause of action.
Â âThis would change the social norm,â Matthew said. âIt would create a system where the institutions that employ health providers would do what theyâve done with HIPAA (the Health Insurance Portability and Accountability Act).
Â âHIPAA changed everything with respect to privacy,â Matthew said. âInstitutions became immediately active and proactive with respect to training, teaching and changing the social norms around privacy.â
Â Matthew said she understands that pursuing legal remedies is just part of what it takes to rid Americaâs health care system of racial disparities.
Â âI do not think weâre going to litigate or sue ourselves out of implicit bias and its deadly impact on health care,â Matthew said. âBut I do believe weâre going to change the social norm if we do what Iâve proposed.â