Some patients may make discriminatory requests for a different clinician for their health care.1-5 These individuals may want to avoid treatment with clinicians of a certain race, religion, gender, sexual orientation, or national origin. Oncologists are not exempt from this type of patient behavior.6 Clinicians may confront fewer discriminatory requests in the outpatient setting, because patients can normally avoid conflict by selecting clinicians whom they prefer. But clinicians in hospitals and other medical institutional settings may confront discriminatory requests more often. Recent studies suggest that 20% to 40% of physicians have personally experienced or know someone who has experienced rejection by a patient based on their race or ethnicity.7 These rates are substantially higher among minority clinicians.8
Furthermore, discriminatory requests may be rising.9 First, the health-care workforce is slowly becoming more diverse.6,10 ASCO, for example, is implementing its Strategic Plan to Increase Racial and Ethnic Diversity in the Oncology Workforce to promote the development of an oncology workforce that is culturally competent and equipped to care for a diverse population of patients with cancer.11 Consequently, there are more and more racial and ethnic minority health-care providers in a position to potentially confront a patient’s discriminatory request. Second, there are not only more “targets” of discriminatory requests, but there may also be more patients likely to make them.12-16
“Recent studies suggest that 20% to 40% of physicians have personally experienced or know someone who has experienced rejection by a patient based on their race or ethnicity.”— Thaddeus Mason Pope, JD, PhD
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Few professional societies have issued applicable guidelines or policy statements to provide clear guidance in these situations.17-19 Only recently have hospitals begun adopting policies to confront patient discriminatory requests, but even those remain limited.20,21 Here, we provide some recommendations on how to respond to a patient’s discriminatory request for a different clinician.
Clinically and Ethically Appropriate and Inappropriate Discriminatory Requests
NOT ALL REQUESTS from patients to be attended by another health-care provider are necessarily due to invidious bigotry.22 Indeed, many commentators conclude there is a spectrum or range of justifiability for asking to change physicians.23,24 Therefore, clinicians must explore the patient’s reasons for making a discriminatory request. For example, an observant Muslim female patient may not want to be touched by a male physician who is not a family member, even as part of a medical examination, and may request to be seen by a female physician.25-27 Similarly, a female victim of sexual assault may also prefer a female clinician,28 and a former prisoner of war may fear treatment with a clinician of the same national origin as his captors.29
Such clinically and ethically appropriate requests for clinicians of a certain gender, religion, or national origin should generally be accommodated. Accommodation produces significant benefits in terms of both patient satisfaction and health outcome.30,31 Indeed, federal nondiscrimination law recognizes that gender, religion, and national origin might be “reasonably necessary to the normal operation” of providing health care.32 In other words, these categories may qualify as “bona fide occupational qualifications.”33-36 It may sometimes be permissible to accommodate such requests on these grounds, because they may be relevant to the services being provided. In contrast, the bona fide occupational qualification exception does not apply to discrimination based on race, religion, gender, sexual orientation, or national origin.
Nevertheless, even if a discriminatory request is justified, it is not always possible to accommodate it. This is especially true in emergency situations, when the patient is unstable. If the patient with an emergency medical condition lacks capacity, then clinicians should normally proceed to treat the patient. If the patient has capacity and refuses treatment from the available clinicians, then such a refusal must be respected.37 But clinicians must carefully document such a refusal to confirm that the patient truly understands the risks, benefits, and alternatives to his or her request.
Refusing to Accommodate Discriminatory Requests
ALTHOUGH SOME discriminatory requests are justified by intimate privacy, religious, or cultural needs, other discriminatory requests are grounded in bigotry.38 Institutions should have neither policies nor practices that accommodate these requests, for two important reasons.39 First, it causes measurable moral distress to their clinicians.40-47 Clinicians find these requests “painful and degrading.”48 By perpetuating and accentuating the bigotry, institutions exacerbate feelings of betrayal and violation.25 The second reason not to accommodate bigoted discriminatory requests is their illegality.
“Over the past few years, health-care workers have successfully sued institutions that accommodated bigoted discriminatory requests for clinicians of a different race.”— Thaddeus Mason Pope, JD, PhD
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Repeatedly, over the past few years, health-care workers have successfully sued institutions that accommodated bigoted discriminatory requests for clinicians of a different race.49-51 And clinicians continue to bring more of these cases to court.52-54 It does not matter that the institution is motivated by patient satisfaction rather than by racial animus. By accommodating the patient’s preference, the institution becomes the discriminatory agent.55,56
Responding to Bigoted Discriminatory Requests
IF MEDICAL INSTITUTIONS may not and should not accommodate bigoted discriminatory requests, then how should institutional clinicians respond? First, clinicians should advise patients that they cannot accommodate such requests. Second, clinicians should try to persuade patients to accept treatment, assuring them that the available clinicians are qualified and capable of delivering quality care. Third, if patients insist on their discriminatory request, advise them of their right to seek care elsewhere.17
Although a top-down approach is inadvisable, a bottom-up approach is appropriate. Clinicians may decide among themselves to reassign care. Instead of being motivated by a desire to satisfy a patient’s request, voluntary reassignment is motivated by the clinician’s desire to avoid the racist patient. In other words, institutions should not impose reassignment, but they should also generally accommodate it.57,58 ■
Dr. Pope is Director of the Health Law Institute and Professor of Law at the Mitchell Hamline School of Law in Saint Paul, Minnesota (www.thaddeuspope.com).
Editor’s Note: The Law and Ethics in Oncology column is meant to provide general information about legal topics, not legal advice. The law is complex, varying from state to state, and each factual situation is different. Readers are advised to seek advice from their own attorney.
Disclaimer: This commentary represents the views of the author and may not necessarily reflect the views of ASCO or The ASCO Post.
DISCLOSURE: Dr. Pope reported no conflicts of interest.
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