Healthcare settings have long been sites where minoritized patients have needed to fight to receive adequate quality of care. The recent debates about physicians not wearing masks in hospitals and clinics to protect immunocompromised and vulnerable patients is only the latest example of systemic failures allowing such health-related injustices to appear.
For decades, legal scholars have been discussing the promise and shortcomings of tort law as an avenue to bring about social change and promote equality. In her important and novel article Biased but Reasonable, Maytal Gilboa discusses how one avenue to address health-related injustices—using tort law, specifically medical malpractice (professional negligence)—fails Black patients.
Gilboa starts her article by discussing “diminishing stereotypes” among physicians. Those stereotypes make physicians second-guess the symptoms of minoritized patients and lead them to choose less intensive (or less effective treatment) for those patients compared to White patients. Gilboa extensively discusses one type of such diminishing stereotype attributing higher tolerance of pain to Black patients, a topic she also covered in a previous article cleverly titled The Color of Pain.
In that area, Gilboa is in conversation with other legal scholars researching racial serotypes affecting quality of care, notably Dayna Matthew Bowen, Ruqaiijah Yearby, Seema Mohaptra, Brietta Clark, Mary Crossley, and more recently Alice Abrokwa. Using critical race theory, these scholars attribute a bundle of stereotypes relating to Black people in the medical context —like that of resistance and noncompliance, incompetence in caring for oneself, and untrustworthiness—to the legacy of enslavement.
Gilboa impressively engages with significant social science research proving the existence of such racial bias in clinical decision making. Once specific study that stands out is an experiment in which physicians were randomly assigned identical medical files showing symptoms of acute coronary syndrome with a photo of either a Black or White patient. The study found disparities in the rates of recommending blood thinner medications to treat the symptoms: showing more likelihood of recommending the treatment to White over Black patients. Gilboa then analyzes how current legal structures allow for these stereotypes to flourish in healthcare settings or at least do not assist in addressing them through the litigation.
Gilboa persuasively claims that current malpractice doctrine fails to provide adequate redress for patients harmed by care affected by implicit bias, specifically diminishing stereotypes. This is because the way professional duty is structured in tort law: a plaintiff needs to show that the physician’s chosen treatment fell outside the range of professional standard of care. This standard of care is measured with reference to “ordinary prudence and real-world practice” and allows physicians to select inferior treatments for minorities (specifically Black people) based on bias – creating what Gilboa terms a “biased but reasonable” barrier for recovery.
In other words, as long as the treatment the physician chose for a Black patient is within the spectrum of what is considered widely accepted standard of care (also known as “the multiple methods of treatment doctrine”), the fact that the choice of treatment was affected by stereotypes is immaterial for establishing malpractice. Gilboa therefore calls out the standard of care as a safe harbor for biased healthcare decisions (P. 515). As a law and economics scholar, she points out how this doctrinal loophole leads to underdeterrence and creates very little incentive (at least as far as civil liability goes) for reducing racial biases among healthcare professionals, “lead[ing] to the impression that tort law tolerates, and even validates, gross inequality” (P. 517).
In terms of identifying a solution to the problem of a biased treatment being considered reasonable, Gilboa offers a clever contribution. After arguing that as a normative matter biased treatment should never be considered reasonable (Pp. 524-26), she suggests harnessing the “loss of chance doctrine” to allow Black patients who can prove they received biased treatment to be able to recover at least partial redress for their resulting injuries. The compensation such plaintiffs could receive will be calculated in proportion to the likelihood that the physician’s wrongful behavior (choosing wrong treatment based on bias) contributed to the injury.
This is a valuable solution under most circumstances: where a plaintiff cannot establish by the preponderance of the evidence (likelihood of more than 50%) a but for causation between the bias and the injury. Thus, in a situation where the plaintiff can only prove that the chance that racial bias contributed to the physician’s choice of a less intensive treatment by 30% because of bias, the plaintiff will still be able to receive compensation for the diminution in their chance of recovering from their injury the physician’s biased treatment caused. Such a solution is justified from both a corrective justice perspective as well as from a deterrence perspective.
Gilboa’s work is as excellent as it is teachable. One can easily incorporate it into a 1L class discussions to show the connection between doctrine and systemic real-world problems including DEI issues. Indeed, my own torts students have benefited greatly from Gilboa’s work over the years and I hope many more across the country will soon do too.
