About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


60 UCLA L. Rev. 462 (2012-2013)
Patients Racial Preferences and the Medical Culture of Accommodation

handle is hein.journals/uclalr60 and id is 478 raw text is: Patients' Racial Preferences 0. 1 and the Medical Culture of Accommodation C400f Kimani Paul-Emile ABSTRACT One of medicine's open secrets is that patients routinely refuse or demand medical treatment based on the assigned physician's racial identity, and hospitals typically yield to patients'racial preferences. This widely practiced, ifrarely acknowledged, phenomenon- about which there is new empirical evidence-poses a fundamental dilemma for law, medicine, and ethics. It also raises difficult questions about how we should think about race, health, and individual autonomy in this context. Informed consent rules and common law battery dictate that a competent patient has an almost-unqualified right to refuse medical care, including treatment provided by an unwanted physician. Yet the accommodation of patients' racial preferences with respect to their choice of physician in the hospital context appears to violate antidiscrimination principles. How should we reconcile this apparent conflict between respect for patient autonomy and accepted notions of racial equality? Moreover, is the accommodation of patients'racial preferences the type of invidious discrimination that civil rights laws were enacted to prevent? This Article engages these questions through an evaluation of antidiscrimination norms, principles of medical ethics, and federal laws, including Titles II, VI, and VII of the Civil Rights Act. In so doing, the Article offers critical insights into why a form of discrimination that is prohibited in other contexts is tolerated in the hospital setting and draws important conclusions about the legal propriety and medical efficacy ofthis practice. The Article contends that the various titles of the Civil Rights Act offer no clear legal directive on this practice, and it makes the counterintuitive claim that although hospital accommodation of patients' racial preferences appears to contravene antidiscrimination principles, it is not only consistent with our normative commitments to racial equality but, in fact, constitutes an effective means of alleviating race-based health disparities, improving health outcomes, and quite possibly, saving patients'lives. AUTHOR Kimani Paul-Emile is Associate Professor of Law at Fordham University School of Law. I am very grateful for the generous support provided for this research by the Robert Wood Johnson Foundation. I appreciate the helpful comments I received from Eleanor M. Brown, Nestor Davidson, Sheila Foster, Barry R. Furrow, Camille Gear-Rich,Michelle Goodwin, Jennifer Gordon, Lawrence 0. Gostin, Abner Greene, Tanya Hernandez, Sonia Katyal, Sylvia Law, Robin Lenhardt, Terry M. Perlin, Dorothy Roberts, Theodore Ruger, Terry Smith, Olivier Sylvian, and Benjamin Zipursky, from participants at the 60 UCLA L. REV. 462(2012)