University of Colorado law professor Dayna Matthew cites a study that finds an estimated 84,000 â€śexcess deathsâ€ť could be prevented each year in the United States if the Black-White â€śmortality gapâ€ť were eliminated.
WASHINGTON â€” When it comes to eliminating the racial disparities that plague Americaâ€™s health care system and cause Blacks to â€ślive sicker and die quickerâ€ť than Whites, University of Colorado law professor Dayna Matthew believes the cure is to be found in the law.
Â â€śLaw changes social norms and the social norm needs to be changed in this country,â€ť Matthew said during a lecture at Politics & Prose, a downtown bookstore where she discussed her recently released book, â€śJust Medicine: A Cure for Racial Inequality in American Health Care.â€ť
Â â€śChanging the social norm matters. (In) Brown versus Board of Education, we changed the social norm about explicit prejudice and racism in this country,â€ť Matthew said of the landmark decision that ended legal segregation in Americaâ€™s public schools. â€śWe need to change the social norm about implicit, unconscious racism, unintentional racism also.â€ť
Â Matthew contends that Americaâ€™s 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 â€śexcess deathsâ€ť could be prevented each year in the United States if the Black-White â€śmortality gapâ€ť were eliminated.
Â She also cited â€śUnequal Treatmentâ€ťâ€”an Institute of Medicine study that found that racial and ethnic minorities get a lower quality of health care in the U.S.â€”and 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 â€śactionableâ€ť under the act.
Â Second, she said, the US Supreme Court should reverse Alexander v. Sandovalâ€”a 2001 case in which the court decided that, under Title VI of the Act, private individuals can fight intentional discrimination by bringing â€śdisparate treatmentâ€ť claims but may no longer bring â€śdisparate impactâ€ť claims based on unintentional discrimination that have a statistically demonstrated discriminatory effect on minorities, as she writes in her book.
Â â€śProving intentional discrimination is nearly impossible when few Americans are careless enough to create an evidentiary record of outright bigotry,â€ť Matthew writes in Chapter 1, titled â€śBad Law Makes Bad Health.â€ť
Â â€śThis is one of the gifts that our dearly departed Justice Scalia left us,â€ť Matthew quipped during her talk. â€śWe have to replace the private cause of action that worked so well with respect to explicit racism so that itâ€™s available as a cause of action pertaining to implicit racism.â€ť
Â Matthew is cognizant of the fact that there will be critics to her approach.
Â â€śHow do we pattern it so that everyone who has a negative thought is not sued in the system that Iâ€™m proposing?â€ť Matthew asked on behalf of her skeptics. â€śWe employ a negligence standard in the Title VI regime,â€ť she said in answering her own question in legalese.
Â â€śAnd 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 â€śThis would change the social norm,â€ť Matthew said. â€śIt would create a system where the institutions that employ health providers would do what theyâ€™ve done with HIPAA (the Health Insurance Portability and Accountability Act).
Â â€śHIPAA changed everything with respect to privacy,â€ť Matthew said. â€śInstitutions became immediately active and proactive with respect to training, teaching and changing the social norms around privacy.â€ť
Â Matthew said she understands that pursuing legal remedies is just part of what it takes to rid Americaâ€™s health care system of racial disparities.
Â â€śI do not think weâ€™re going to litigate or sue ourselves out of implicit bias and its deadly impact on health care,â€ť Matthew said. â€śBut I do believe weâ€™re going to change the social norm if we do what Iâ€™ve proposed.â€ť
Jamaal Abdul-Alim can be reached at email@example.com. Or follow him on Twitter @dcwriter360.
Could training in implicit bias be helpful at your institution?