Tonya Battle had been working as a nurse in the neonatal intensive care unit (NICU) of the Hurley Medical Center in Flint, Michigan, for 24 years. Her employment record was spotless — by all accounts she was one of the most knowledgeable and capable care providers on the NICU floor. Even so, it wasn’t so surprising when, in the fall of 2012, one infant’s father asked to speak to Battle’s supervisor: Health is extremely personal, and no matter how skilled a health care provider, there will be times when communication with a patient breaks down. It’s common for a patient to ask for another doctor or another nurse.
What was shocking, however, was the note posted on the department assignment clipboard the next day: “NO AFRICAN AMERICAN NURSE TO TAKE CARE OF BABY.”
Here's how the incident unfolded, according to allegations made by Battle in a lawsuit that followed: After she had finished her shift the day before, the father had come to the charge nurse (Battle’s supervisor) demanding that no black nurses attend to his (very sick) infant girl. To punctuate his point, he rolled up his sleeve to show off a swastika tattoo. The charge nurse, Deborah Herholz, then called her boss, the nurse manager Mary Osika, to ask what she should do. Osika said to reassign the baby to another nurse.
A staff meeting followed, in which the NICU nurses were told that Hurley Medical Center had decided not to allow any African-American employees to take care of this particular baby. The note was posted on the assignment clipboard for everyone to see.
The next day, Osika called Battle at home to inform her that the father’s request would be granted. Later that day, Battle reported to work, where one of her co-workers showed her a photo of the offensive note (which had since been removed).
Battle would go on to sue Hurley Medical Center for employment discrimination, settling out of court for an undisclosed amount, and with Hurley agreeing to hire an “employee advocate” whose role would be to forestall similar misadventures in the future.
It’s unclear how common these types of experiences are; there have been no major studies on the issue, so advocates and policymakers have had to rely on anecdotal evidence, the few isolated stories that leak out of the hospital wing and into the press. But many believe Hurley represents the norm and not the exception — that discrimination of this kind is endemic to the health care system.
The ‘open secret’
“I think it happens a lot,” said Julie Gafkay, Battle’s attorney. “I have 20 plaintiffs in the last year who have been subjected to this type of discrimination.” According to Gafkay, after Battle’s case was made public, dozens of other health care workers (nurses, social workers, home health aides, etc.) reached out to her with similar complaints.
Some situations were even more outrageous than Battle’s. In one case, the plaintiff is a human resources employee who says she has direct knowledge that an African-American nurse was fired under false pretenses; the real reason for the firing, she alleges, is that a patient had made the request that no African-Americans care for him.
It’s an “open secret” that “patients routinely refuse or demand medical treatment based on the assigned physician’s racial identity, and hospitals typically yield to patients’ racial preferences,” wrote Kimani Paul-Emile, a professor of law and biomedical ethics at Fordham University, in a 2012 study published in the UCLA Law Review.
So why aren’t more people outraged? Racism in health care settings tends to be much more insidious than the type of racism that would, say, make it onto the nightly news. Patients aren’t screaming racial slurs in the ER or spray-painting derogatory signs on the sides of hospital buildings. They often won’t even say outright that they don’t want a black doctor.
“Patients know it’s not PC” to directly request a white doctor, said Paul-Emile. “They come up with different ways to do it. I talked to this one doctor who said there are these older ladies who will say, ‘You know, I want a Jewish doctor, I just think a Jewish doctor is better.’”
Lisa Ruchti, a professor of sociology at West Chester University and the author of the book “Catheters, Slurs, and Pick Up Lines,” agreed. “Patients who want to fire their nurses based on race say things like ‘I want an American nurse,’” she said.
And hospitals comply. Health care providers are trained to be so patient-focused that even when they feel a request is amiss, many ignore their qualms — whatever the patient wants, the patient gets. In another of Gafkay’s current cases, two plaintiffs allege that an elderly white woman was being treated in the rehabilitation facility of a nursing home when she began to express fears that an African-American man was coming into her bedroom at night to “touch” her. The facility decided that, for the good of the patient, no African-Americans — male or female — would be assigned to her care, and it issued a directive to its staff saying as much. One female African-American nurse was even questioned for coming into the patient’s room at night, and suspended during the questioning.
“[The organizations] are so patient-focused,” said Gafkay, “that they ignore the civil rights of their own employees.”
Not just nurses
At particular risk is the nurse-patient relationship, which Ruchti believes is regularly informed by racism. In providing what Ruchti called “professional intimate care,” nurses are already at risk of being seen more as hired help than as health care professionals. And racist beliefs can exacerbate that misconception. “There are lots of examples of nurses of color being mislabeled as housekeepers by patients even when they are obviously doing nurse work — symbolically demoting them, if you will.”
But it’s not just nurses. Dr. Meghan Lane-Fall treats cardiovascular patients in the surgical care unit at the Hospital of the University of Pennsylvania.
“All of the things that are taught in medicine about being a care provider are to really not think about yourself or your characteristics,” Lane-Fall said. “Your gender and ethnicity are, in theory, erased when you walk through the doors of the hospital.”
But in reality, as an African-American woman, Lane-Fall is often subjected to racially based judgments.
“I can be walking the hallway wearing a white coat,” she said, “and someone will think I’m the janitor, and I’ll think, ‘Is that because I’m black?’”
Lane-Fall recently wrote about an experience caring for a coma patient. On the third day during which the man was under her care, she happened to be in a room when the nurses were changing his gown. Spread across his chest was a tattoo: 3- to 4-inch-high lettering spelling out the words “White Power.”
At that moment, Lane-Fall recalled how she had felt nothing but coldness from the tattooed man’s family; until now, she had thought nothing of it. Now it seemed sinister.
She thought: “Oh, you’re not just this nameless, faceless person taking care of a patient; you’re a black woman who has all these other characteristics that affect the way patients see you.”
On the flip side, Ruchti said nurses of color she spoke with told her that patients of color sought them out on purpose. And in fact, research suggests that your health outcomes can improve if you and your physician have what’s called in the literature “race concordance.”
A Johns Hopkins study published in 2002, for example, found that, when given the choice, patients would choose doctors of their own race. And, when treated by same-race physicians, the patients reported higher satisfaction. The results cut across all races and ethnicities. The study, led by Thomas LaVeist, was one of the first of its kind.
But others soon followed. A 2005 study published in the Annals of Family Medicine found that many African-Americans and Latinos believed strongly that the health care system was racist — and that they preferred to have same-race doctors as a result.
And more recently, a 2010 study published in the Journal of the National Medical Association confirmed the previous findings: Black patients were more likely to feel that white doctors were giving them subpar care compared with black doctors and, therefore, preferred same-race health care providers.
Some will even argue that choosing a doctor of the same skin color is no different from choosing a doctor of the same gender. Many women don’t feel comfortable talking to a man about gynecological issues; is it that much of a stretch to imagine an African-American man feeling he can be more open and honest about his lifestyle and behavior with an African-American doctor?
All things being equal, if you offered me a black provider I’d probably choose that.
Preferences like these aren’t driven by ignorance. Lane-Fall got her undergraduate degree in molecular and cell biology from the University of California, Berkeley, her master’s in health policy from the University of Pennsylvania and her M.D. from Yale. She’s about as well educated as a human being could ever be. And yet, “all things being equal, if you offered me a black provider I’d probably choose that,” she said, adding that she’d assume someone from a similar background would know more about her.
Because of these complexities, the legal issues here are legion. The 1964 Civil Rights Act prohibits discrimination based on race, gender, national origin or religion in public accommodations and in any place that receives public funding. On the face of it, this would appear to mean that a patient could not make race-based requests for nurses and doctors. After all, pretty much every health care institution receives some federal funding, whether directly or in the form of public health insurance reimbursements.
But, as Paul-Emile argues, those provisions of the Civil Rights Act are actually meant to preclude institutions from “prohibiting individuals from enjoying the benefits that the institution provides” — and by accommodating a patient’s preference, “you are actually allowing that patient to enjoy the benefits” provided by a federally funded hospital.
And, in fact, that is what is happening in the real world. A 2010 study, for example, showed that patients across the board will often make race-based requests with regard to their health care provider — and that providers will often accede to these preferences. In that same study, Dr. Herbert Rakatansky, the former chair of the American Medical Association’s Council on Ethical and Judicial Affairs, is quoted as saying, “In a life-threatening situation, you would have to abide by a patient’s request.” In other words, there may be both a legal and an ethical imperative to accommodate racial preference in the hospital.
The positive preference
None of this, however, is meant to justify racism.
Paul-Emile has highlighted an important legal distinction between doctors, who can usually decide themselves whether to treat a given patient or not, and nurses and other health care support staff, who are assigned their charges. She argues that hospitals run afoul of the law when they reassign African-American nurses at a patient’s request, no matter the potential health benefits.
Gafkay, the attorney in Michigan, pointed out that all her cases involve an “organization validating the discriminatory request” — a much different situation, since it puts nurses in the precarious position of being unable to express themselves for fear of organization retribution.
Second, while it may be both legally and ethically acceptable for a patient of color to seek out a doctor of color, what about a white patient who seeks out a white doctor?
The legacy of years of racial discrimination has led to a disproportionately low number of African-American doctors. A 2009 Health System Change report, for example, found that the physician workforce was about 74 percent white and 4 percent black, while the U.S. population as a whole was 69 percent white and 12 percent black during the same year.
And one major study a few years back had patients go to doctors presenting with the exact same symptoms (which suggested cardiovascular disease), identical in every way except race and gender. Across the board, African-American women received substandard treatment and poor diagnoses.
Studies like this suggest that it’s entirely rational for an African-American patient to feel wary of the medical system. And that, Paul-Emile believes, is what should drive a physician’s decision whether or not to accommodate a racial preference.
In other words, though it may be difficult to discern a patient’s motivations, the goal of health care professionals should be to distinguish between a positive preference, in which patients are seeking better care, and discrimination, in which patients are just expressing racist beliefs.
And even then, Paul-Emile said, accommodating these positive preferences is far from ideal.
“I don’t think this is a solution,” she said. “I think it’s a stopgap measure until we get to the more fundamental issues that are driving this. The medical profession must instead increase diversity among providers to encourage tolerance and understanding of other cultures, and expand cultural awareness at all levels of practice and training to enable providers to interact more effectively with their diverse patient populations.”