Race, Health Care and the Law 
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Race And Discretion in American Medicine

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Vernellia R. Randall
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 M. Gregg Bloche

excerpted Wrom: RWTQTIPWIGYOKSTTZRCLBDXRQBGJSNBOHMKH in American Medicine, 1 Yale Journal of Health Policy, Law & Ethics 95-121, 95-97 (Spring 2001) (111 Footnotes Omitted)

Rarely has a piece of social science research received more attention than the 1999 study by Kevin Schulman and others reporting large differences in physicians' responses to identical heart disease symptoms presented by black and white actors portraying patients. The 720 physician-subjects who participated in the study referred lower proportions of African- American than white age and sex matched "patients" for cardiac catheterization, a costly, state-of-the-art diagnostic measure, even after the researchers controlled for physicians' subjective impressions of disease likelihood and severity. Critics quickly found errors in the authors' statistical methodology--errors that exaggerated these racial disparities. The New England Journal of Medicine, in which the article appeared, then took the extraordinary step of issuing a partial retraction.

Yet publication of the Schulman study did more than any other single event to put the matter of racial disparities in health and medical care on the American public policy agenda--and to frame political discussion of the topic. Hundreds of prior publications reported powerful evidence of racial gaps in life expectancy, morbidity from various illnesses, access to health insurance and services, and the clinical management of disease. But the Schulman study's use of African-American and white actors with identical scripts presented a stark picture of pure racial bias, uncomplicated by the potentially mediating roles of educational background, economic status, or other social cues. The study received national media attention, and months later a congressional appropriations report termed its findings "alarming." Report language spotlighting the Schulman study accompanied federal legislation funding an Institute of Medicine (IOM) inquiry into the scope, impact, and causes of racial bias in American medicine. A variety of other public and private sector initiatives targeted racial bias in American health care as a topic for research, discussion, and intervention.

Racial disparities in health care provision that persist even when researchers control for income, education, and health insurance status are the primary focus of these initiatives. Efforts to understand the reasons for these disparities have focused on psychological, social, and cultural influences that affect providers' clinical judgments and patients' expressed preferences. In this Article, I explore institutional, economic, and legal factors that contribute to these disparities. This contribution, which I contend is larger than commentators on health care disparities typically acknowledge, occurs through interaction between organizational and legal arrangements and physicians' exercise of clinical discretion. Because these arrangements are amenable to pragmatic intervention, they deserve close attention.

My focus in this Article is on racial disparities in medical care provision--that is, on differences in the services that clinically similar patients receive when they present to the health care system. Racial disparities in health status, which is not greatly influenced (on a population- wide basis) by medical care, are beyond my scope here. Disparities in medical care access--potential patients' ability, financial and otherwise, to gain entry to the health care system in the first place, are also outside my focus. But I begin this Article by putting the problem of racial disparities in medical care provision within the larger context of disparities in health status and medical care access.

In Part I, I concede: (1) that medical care is almost certainly less important as a determinant of health than are social and environmental influences, and (2) that inequalities in Americans' ability to gain entry to the health care system probably play a larger role in medical treatment disparities than do racial differences in the care provided to people who succeed in gaining entry. I then briefly examine the moral politics behind the appearance of racial disparity in health care provision on the national policy agenda, ahead of disparities in health status and medical care access. 

In Part II, I consider the links between clinical discretion and racial disparities in health care provision. I argue that pervasive uncertainty and disagreement, about both the efficacy of most medical interventions and the valuation of favorable and disappointing clinical outcomes, leave ample room for discretionary judgments that produce racial disparities. Neither existing institutional and legal tools, nor prevailing ethical norms, impose tight constraints on this discretion. As a result, provider (and patient) presuppositions, attitudes, and fears that engender racial disparities have wide space in which to operate. 

In Part III, I refine this argument, pointing to a variety of extant organizational, financial, and legal arrangements that interact perniciously with psychological and social factors to potentiate racial disparities. 

Part IV considers the impact of the managed care revolution, contending that its cost containment strategies both contribute to racial differences in health care provision and create opportunities for reducing some of these disparities. Part V closes with some recommendations as to how health care institutions and the law might respond pragmatically to racial disparities even as they pursue other important policy goals.

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Professor Vernellia R. Randall
Institute on Race, Health Care and the Law
The University of Dayton School of Law
300 College Park 
Dayton, OH 45469-2772
Email: randall@udayton.edu


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