Biased but Reasonable: Bias Under the Cover of Standard of Care

• Jurisdiction: United States,Federal
• Citation: Vol. 57 No. 2
• Publication year: 2023

Biased but Reasonable: Bias Under the Cover of Standard of Care

Maytal Gilboa
Bar-Wan University Law School, maytal.gilboa@biu.ac.il

Biased but Reasonable: Bias Under the Cover of Standard of Care

Cover Page Footnote

Assistant Professor, Bar-Ilan University Law School; Ph.D., Tel Aviv University Faculty of Law. For helpful comments and discussions, I would like to thank Natalie Davidson, Doron Dorfman, Omer Pelled, Gideon Parchomovsky, Ariel Porat, Emily Schaffer, Lionel Smith, Keren Yalin-Mor, and the participants of the 32nd Annual Meeting of the American Law and Economic Association, the Canadian Law of Obligations III, the Law and Economics Workshop at the Hebrew University Faculty of Law, and the Annual Meeting of the Israeli Private Law Association. I thank Maor Levi for excellent research assistance.

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BIASED BUT REASONABLE: BIAS UNDER THE COVER OF STANDARD OF CARE

Maytal Gilboa^*

Inequities in the healthcare distribution are widely acknowledged to plague the United States healthcare system. Controversies as to whether antidiscrimination 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, this 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

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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, healthcare providers will remain disincentivized to eliminate it.
Finally, this 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. This 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 incentivizes healthcare providers to eliminate biased judgments and provide redress for victims of biased medical care.

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Table of Contents

I. Introduction...................................................................492

II. The Implicit Influence of Stereotypes: Understanding Bias......................................................499

A. DIMINISHING STEREOTYPES...........................................500
B. ILLUSTRATING THE DIMINISHING EFFECT OF STEREOTYPES IN HEALTHCARE.............................................................504
C. THE COGNITIVE CYCLE OF DIMINISHING EFFECTS..........508

III. Biased-But-Reasonable: Bias under the Cover of the Standard of Care...........................................................510

A. ONE STANDARD OF CARE, A RANGE OF REASONABLE DECISIONS.....................................................................512
B. FACING THE PROBLEM: THE STANDARD OF CARE AS A SAFE HARBOR FOR BIASED DECISIONS.....................................515

IV. Identifying Biased-But-Reasonable Decisions as Negligent.......................................................................523

A. UNREASONABLE CHOICE OF REASONABLE TREATMENT .. 524
B. THE EVIDENTIARY CHALLENGE ......................................526
C. REMEDYING BIAS: DAMAGES FOR BIASED-BUT-REASONABLE DECISIONS AS LOSS OF CHANCE TO HEAL.......................530

V. Conclusion.....................................................................536

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I. Introduction

Healthcare research has shown systematic discrepancies in the level of care provided to patients belonging to different social groups. In particular, women and minorities frequently suffer from two types of judgment errors that negatively affect their care: errors resulting from knowledge gaps¹ and errors resulting from bias.² Knowledge gaps are typically discussed in relation to women's underrepresentation in medical research,³ which translates into clinical uncertainty as to how a disease or its symptoms manifest in female patients, leading to misdiagnoses.⁴ Recently, studies have also discussed the damaging effects of knowledge gaps on transgender patients,⁵ when healthcare providers treat patients in a way that is reasonable for either male or female patients but not

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necessarily for male-to-female or female-to-male transgender patients.⁶ This Article focuses on the second type of error, which derives from biased medical judgments.⁷ Biased care is the result of a cognitive process through which stereotypes affect the judgment of healthcare providers,⁸ making them perceive their patients' conditions as less severe than they are and thus recommend less intensive care than is needed.⁹

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The law of negligence is an important tool for battling unconscious bias in healthcare programs,¹⁰ especially in light of controversies over whether Section 1557 of the Affordable Care Act,¹¹ and the antidiscrimination statutes to which it refers,¹² create a private right of action for implicit (rather than intentional) forms of discrimination.¹³ As I discuss throughout this Article, however, negligence law currently fails to provide adequate redress for patients harmed by biased care.¹⁴ The reason for this is that medical providers can be held liable for breaching their duty of care only

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when their patients can establish by a preponderance of the evidence that the chosen treatment fell outside the professional standard of care.¹⁵ As this Article explains, patients harmed by biased care decisions can almost never meet this requirement.

Because the duty of care is determined according to "ordinary prudence and real-world practice,"¹⁶ there are often two or more courses of treatment considered medically reasonable for a particular disease or condition, some more intensive and expensive than others.¹⁷ As long as a healthcare provider chooses a course of treatment situated within this reasonable range of care, her conduct does not constitute a breach of duty toward her patients under current negligence law.¹⁸ As I discuss here, this understanding of

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what constitutes a breach of the duty of care opens the door to the influence of bias within the range of reasonable care, allowing healthcare providers to systematically select inferior treatments for women and minorities based on treatment decisions I define here as "biased-but-reasonable."

Biased-but-reasonable decisions provide an affirmative defense to healthcare providers who, most likely unconsciously, choose less intensive and less expensive care for patients belonging to social groups associated with "diminishing stereotypes," that is, stereotypes that lead healthcare providers to underestimate the seriousness of these patients' medical condition.¹⁹ The fact that a range of treatments may be considered medically reasonable care allows physicians to apply inferior care to women and minority patients, so long as the selected treatment remains "consistent with one or another widely accepted standard of care."²⁰ Biased-but-reasonable decisions not only result in unredressed harm to patients but also create a serious problem of underdeterrence by tolerating—and arguably vindicating—the unequal distribution of treatments within the bounds of the standard of care.²¹ Such disparities translate into discrepancies in the cost of caring for—and thus the cost of injuring—patients of different social groups.²²

To contend with the challenges that biased-but-reasonable decisions pose, this Article presents a three-stage analysis. First, it offers a normative framework for identifying biased treatment choices as negligent, even if they fall within the range of medically reasonable practice.²³ Second, it confronts the evidentiary

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difficulties in requiring plaintiffs to prove by a preponderance of the evidence that the choice of treatment in their particular case was biased.²⁴ For example, statistical evidence may show that the likelihood of being given less intensive treatment for a particular medical condition is higher for Black than White patients in a particular hospital. Yet, statistical evidence is usually insufficient to establish, by a preponderance of the evidence, the contribution of bias to the resulting harm in a particular case.²⁵ Finally, to...