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Publication Date

3-9-2023

Abstract

Inequities in the distribution of healthcare are widely acknowledged to plague the United States healthcare system. Controversies as to whether anti-discrimination law allows individuals to bring lawsuits with respect to implicit rather than intentional bias render negligence law an important avenue for redressing harms caused by implicit bias in medical care. Yet, as this Article argues, the focus of negligence law on medical standards of care to define the boundaries of healthcare providers’ legal duty of care prevents the law from adequately deterring implicit bias and leaves patients harmed by biased treatment decisions without redress for their losses, so long as those decisions fall within the range of medically accepted practices. I term this the problem of “biased-but-reasonable” decision-making.

In medical malpractice, the duty of care is set according to standards of real-world practice, which typically recognize more than one course of treatment as acceptable for a given medical condition. Provided that a physician’s choice of treatment for a particular patient falls within the range of those accepted by the professional community, she is perceived as acting reasonably, even if her decision was influenced by implicit bias. In this way, biased-but-reasonable treatment evades the radar of negligence law.

After revealing the concept of biased-but-reasonable, the Article examines the normative problems it creates, particularly with respect to deterrence. Negligence law’s failure to assign liability to physicians, whose treatment decisions are influenced by bias but who nonetheless act within the bounds of professional standards, creates a situation in which some patients are less costly to treat—and therefore less costly to harm—than others. As long as the architecture of the negligence doctrine enables biased choices to hide under the veil of reasonable care, health care providers will remain disincentivized to eliminate it.

Finally, the Article provides a normative framework that identifies biased treatment choices as negligent, even when they fall within the range of what is considered medically reasonable. It then confronts the evidentiary difficulties that prevent patients, harmed by biased choices of treatment, from establishing their entitlement to damages on a theory of negligence. Specifically, it demonstrates that a key element of such a claim—proof by a preponderance of the evidence that their treatment was chosen based on bias rather than objective medical judgment—places an insurmountable burden on most victims of implicitly biased treatment. The Article argues that the loss of chance doctrine can be harnessed to contend with this evidentiary hurdle and illustrates how the use of this doctrine can both incentivize healthcare providers to eliminate biased judgments and provide redress for victims of biased medical care.

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