Infected Judgment: Legal Responses to Physician Bias

Abstract:     
Substantial evidence indicates that clinically irrelevant patient characteristics, including race and gender, may at times influence a physician's choice of treatment. Less clear, however, is whether a patient who is the victim of a biased medical decision has any effective legal recourse. Heedful of the difficulties of designing research to establish conclusively the role of physician bias, this article surveys published evidence suggesting the operation of physician bias in clinical decision making. The article then examines potential legal responses to biased medical judgments. A patient who is the subject of a biased decision may sue her doctor for violating his professional duties, including his fiduciary obligation to the patient. Courts may be unwilling, however, to expand the scope of physicians' professional liability beyond existing medical malpractice law. While federal anti-discrimination laws may prohibit some instances of biased medical decisions, those laws leave many instances of physician bias unaddressed. Moreover, those laws typically would require a patient to prove that her doctor acted intentionally in discriminating, a daunting task if the physician's bias is unconscious, as is probably often the case. Finally, under either a professional liability action or a civil rights suit, the patient faces the fundamental problem of proving that bias in fact infected her physician's judgment. Because of these difficulties, the article concludes that existing law does not provide a ready remedy for a patient who is the victim of a biased medical decision.

Keywords: medical treatment, bias, discrimination, civil rights, biased medical decision, physician's choice of treatment, medical malpractice law

Accepted Paper Series