Discrimination in the Doctor-Patient Relationship

By Holly Fernandez Lynch

Nir Eyal’s post below has teed up the issue of doctors refusing to accept patients for reasons that seem to be pretty questionable.  The latest example has to do with obesity, but there are plenty of others having to do with vaccination status, sexual orientation, and the like.  Sometimes these refusals can be clearly categorized as conscientious objections (religious or otherwise).  And other times they are  a bit fuzzier, such as when the refusals are rooted in attempts to drive changes in behavior  (e.g., “get vaccinated or you can’t be my patient”) or when they stem from having inadequate staffing or equipment.  But for the patient, all of these refusals can feel discriminatory.   And that raises the obvious question: can doctors legally discriminate against patients?  The answer: it depends.  Sometimes yes, and sometimes no.

First, bear with me while I make the obligatory pitch for my book, Conflicts of Conscience in Health Care, which is now a few years old, but the issues are still very much live.  In that book, I delve deeply into the question of how to balance provider conscience and patient access.  In general, I argue that it is important to protect provider conscience, to a point (or points) – and those points have to do with burden on the patient and avoidance of invidious discrimination.  Simplifying a great deal, the gist is that consistent refusals to provide a particular objectionable service to any patient ought be accepted, unless they cause unacceptable patient access problems.  On the other hand, refusals to provide a service only to certain types of patients one finds objectionable ought not be accepted, regardless of whether they cause any patient access problems whatsoever.  In other words: objection to service on moral grounds = OK; objection to patient on moral grounds = not OK.  Notice that I specify moral grounds to distinguish refusals based on things like scientific or medical judgment, expertise, etc.  Coming back to the real world, then, I think refusing to accept an obese patient because you think s/he is bad, or less worthy, or whatever = not OK.  Refusing an obese patient because they would be better treated by someone else is a different story.

So now on to the law.  Existing case law conveys the well-established default rule that initiation of the doctor-patient relationship is voluntary for both parties.  But there is a catch – physicians are only free to refuse to accept a prospective patient if their reason for doing so is not prohibited by contract (e.g., with their employer or an insurance company) or by law.  And there are several laws at the state and federal level that prohibit certain types of discrimination in the context of offering public accommodations – including discrimination against patients.  For example, the Civil Rights Act of 1964 prohibits physicians and hospitals receiving federal funding, including Medicare and Medicaid (so read: nearly everyone), from discriminating against patients on the basis of race, color, religion, or national origin.  Some states have expanded on this to cover medical personnel and health care facilities beyond the funding “hook” and to include additional protected categories. At the height of the HIV/AIDS epidemic, for example, a number of states prohibited licensees from categorically refusing to treat infected patients when the licensee possessed the skill and expertise necessary to treat the condition presented.  Some states also have laws and licensing requirements applicable to the medical context that prohibit discrimination on the basis of gender, sexual orientation, marital status, disability, or medical condition.  In addition, the Americans with Disabilities Act limits a physician’s ability to refuse a patient, as recognized by the Supreme Court, and the Rehabilitation Act of 1973 may also be relevant in some cases.

The bottom line is that some types of discrimination against patients are legally permitted and others aren’t.  Moreover, the answer – particularly with regard to some of the newer categories beyond race and religion – might depend on what state you’re in.  In some of the more progressive states, and potentially even under the ADA, discrimination based on weight might in fact be impermissible, that is if obesity is considered a disability or a medical condition (which it very plausibly could be, depending on severity).  On the other hand, discrimination based on failure to vaccinate would seemingly run up against no statutory prohibition, assuming the patient’s decision to avoid vaccinations was not rooted in religious belief.  Similarly, rejecting a patient for his political views, inability to pay, refusal to abide by medical advice, decision to smoke (or play contact sports?), or other characteristics not protected by law would fall completely within the realm of physician discretion.  Note, however, that once the doctor-patient relationship has been established, a doctor who would choose to end that relationship must worry not only about anti-discrimination laws, but also his or her obligation not to abandon the patient.

Finally, I just want to point out that although there has been lots of discussion as to whether newsworthy physician refusals will result in a slippery slope of increasing discrimination against patients, I think those fears are largely unfounded.  There are substantial legal protections in place, which are only becoming more comprehensive, not to mention a strong professional ethic driving doctors and other health care professionals to help those in need regardless of whether or not they like them or agree with their choices.

What do you think?

(NB: For the AMA’s stance on discrimination against potential patients, click here.)

 

Holly Fernandez Lynch

Holly Fernandez Lynch

Holly Fernandez Lynch, JD, MBE, is the John Russell Dickson, MD Presidential Assistant Professor of Medical Ethics in the Department of Medical Ethics and Health Policy at Penn’s Perelman School of Medicine. She is also the Assistant Faculty Director of Online Education, helping to lead the university’s first online master’s degree, the Master of Health Care Innovation, and other online offerings.

10 thoughts to “Discrimination in the Doctor-Patient Relationship”

  1. A related problem arises when patients leave a hospital against medical advice. Sometimes the hospital physicians will refuse to provide orders for medically necessary follow-up care at home. This means that a patient leaves the hospital with no prescriptions for medications and no home health care or followup care ordered. The doctors justify this by saying they are trying to protect the patient by discouraging the patient from leaving the hospital. I think that people have the right to refuse medical treatment (especially if they can’t afford it), and the hospital doctors should still order whatever post-hospital care is necessary.

    1. I do not disagree in part. But whatever the doctor prescribes. it should be noted somewhere the patient left against the advice of the doctor, or doctors.

  2. Thanks, that’s really interesting – and analogous, I suppose, to refusing patients who smoke until they stop smoking (i.e., to incentivize them to do something the doctor sees as in their best interest). As Nir pointed out in his post below, that sort of discrimination really has perverse effects when the incentives don’t work and the patients are left without care they need.

  3. I understand what you’re saying but that would work in an ideal world. Humans unfortunately are prejudiced and biased and they do a lot of things based on moral principles. Say a Oklahoma doctor for example can refuse many people based on a whole lot of things because the laws permit them to then what do you propose should happen there?

  4. Hi, interesting essay; thanks.

    I’m a bit concerned about the part about not following medical advice. Generally patients aren’t just being curmudgeons. There’s a reason they aren’t doing what you want them to do. Some possible reasons:

    [] It’s expensive and they can’t afford it (or they can’t afford it and also keep up with piano lessons for their child).

    [] They don’t have time to do their other obligations (like work, school, child care, elder care, and so on: keep in mind that even a younger adult or child can be doing care work) and also whatever time-consuming or otherwise effortful thing you want them to do.

    [] They have a lack of transportation and can’t get to the location.

    [] They are homebound because of the effort involved in leaving home, and they can’t get to the location. (Some homebound people will still show up at the doctor’s office. CMS definition of homebound allows for this.)

    [] The thing you want doesn’t even work for them (whether they just are different from most other patients, they are wrongly diagnosed, or the actual guideline is wrong).

    [] They don’t understand, or forgot, what they were meant to do.

    Of course, maybe this discussion is in some other blog post. I came across this entry by searching for information on discrimination.

  5. This is a good reference to discrimination by physicians, but I’ve come upon a situation that I believe isn’t normally encountered, at least where it can easily be found online: I’ve been completely disabled since 1999 and I’ve come across many unpleasant situations, especially open hostility toward disabled patients for BEING disabled. The doctors have become judge and jury over what THEY consider disabled. I believe many patients come across this, but I’m discouraged so much by knowing that a doctor’s office that I’ve been a regular patient of for so long would doubt my situation? Currently I cannot even stand up straight!? My MA would be happy to fill out this paperwork, but was told no by the overseeing doctor, and the government states that it HAS to be signed by a doctor, period. I get $1175 a month, but with the dept of education withholding I’m trying to take care of my family on $998 per month. I’m not asking for special treatment, but I cannot continue with a doctor that thinks I’m scamming the system!!
    I have been a long time patient at this particular office and have been through the gambit of every EVERY test the MA of this Dr’s practice could put me through, yet when I came to them a few months ago with a form to fill out that involved forgiving my student loans, I was told by my MA that the doctor won’t sign such things, and commented quietly that, …”he wouldn’t unless I were paraplegic!?” I’m very upset by this as I can’t even go to my latest surgeon and ask them for the same reason! Why are doctors always assuming that patients with chronic pain are drug-seeking bums that are trying to ” live off the system!?” After fusion surgery I quit smoking and pain medication because these two things seem to really mess up the patient/doctor relationship.
    It’s really insulting, and of course there’s more to this, but this is an area of trouble that I cannot find any information on. Family physicians are under the same, “do no harm” provision as other doctors, are they not? Where do I go from here?

  6. Discrimination by physicians is nothing new. Doctors scheduling medicaid folks out up to two months while openings in two days are available. Judgement and patronizing tongue lashings are routine if you ask too many questions or like me, are in pain and try to avoid an office visit and ask for an MRI without an excruciating drive and tedious office fiasco. I was even told today by my MD, “I pay @thousand dollars a monthfor my insurance, how much do you pay?” Amazing gall, I held myself together though and bolstered by my pain apologized to he and the ladies in the office. I was blown away by the look on my face when I got home, the color was gone and my normal clear skin was awash in fine wrinkles everywhere and punctuated by deep burrowed gashes between my eyebrows. This trip was avoidable and was brutal all on account of poor/non existent sensitivity training. This second class treatment will stop only when the medical profession is forced to pay for their idea that they are doing the poor/unfortunante a favor.

  7. I went to a dr a few days ago that I was referred to by my primary dr. She was the meanest, rudest dr I have ever seen . She was insulting, angry and refused to treat me because I’m a smoker , she also implied in her notes I was there for narcotics because I asked for tramadol for when I have flare ups of my arthritis. All lies in her notes and she keeps massaging me through the patient portal because I was able to give feedback on my experience. This experience with her was unreal, I couldn’t believe my ears and the look of hated and anger on her face. She keeps sending messages when I called her out and will not acknowledge her wrong sounds, keeps telling lies and has put those lies in her notes. I’m very disturbed over this. What should I do?

  8. I have been a pain patient for 11 years. I was abused by my ex husband and am now disabled. My pain doctor was arrested in May by dhec here in SC for plainly just doing his job. Since this happened, I have been without my medicine, was thrown into horrible withdrawals and I have been discriminated by three doctors just because they seen my doctor s name in my records. This so called opiod crisis is nothing more than a money sweep that the government is doing to get money from the doctors thier arresting by siezing their assests. They keep all of this and now thier suing the pharmcutical companies. So who’s getting the money from the lawsuits? Not the public. Dhec and the like don’t care one bit about people of or us pain patients that are now suffering without our medications. Drunk driver’s kill themselves and others everyday. So what next ? We going to take away every one’s cars and driver’s license and tell them to take the bus? I’m now at the point of calling a discrimination lawyer as a matter of fact I just did. It’s not right that I am being punished for what Dhec lied and said my doctor did. I’ve had it up to here with being told to just take an ibuprofen! FYI I’ve had two strokes and it clearly states in the bottle of any nsaids that nsaids can lead to heart failure, stomach bleeding, and stroke. This is now an ibuprofen crisis and you can o.d. on nsaids also. I’ve been denied medical attention , been refused by a doctor to take me as a patient and I was referred to him by a colleague of his. Dr. Behr of Spartanburg, SC denied me without giving a reason although I already know it. It’s discrimination at it’s worst and I for one have had it!

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