What happens when a patient demands a different nurse or physician — one of a different race?

“These situations are difficult for the rejected provider and pose many legal, ethical, and clinical challenges,” says Kimani Paul-Emile, JD, PhD, professor of law at Fordham University in New York City.1

If mishandled, such ethically complex requests can result in problems ranging from bad clinical outcomes to Emergency Medical Treatment and Labor Act (EMTALA) violations — even litigation.2 “Anecdotally, we are seeing an uptick in these cases,” says Paul-Emile, associate director of Fordham’s Center on Race, Law, and Justice and faculty co-director of Fordham’s Louis Stein Center for Law and Ethics.

During the COVID-19 pandemic, some patients rejected providers of Asian descent because of unfounded fears about virus transmission.3 “Patients do have a right to refuse wanted care from an unwanted physician,” Paul-Emile notes.

This is true both ethically (based on informed consent obligations) and legally (in light of medical battery laws). Patients also have a right to receive a medical screening exam and stabilizing treatment as required by EMTALA. Rejected clinicians have rights, too. “If a healthcare provider continually accommodates demands based on race, ethnicity, or religion, it can create the basis for a hostile work environment claim,” Paul-Emile explains.

When patients refused care from Hispanic or Black nurses, some hospitals acquiesced, placing a sign on the patient’s door informing providers of the patient’s wishes. “In those situations, the nurses have sued, and have generally won,” Paul-Emile reports.4

All these factors create a highly charged, ethically complex case. “Medical centers need to have clear policies for dealing with patient bias and how to address these situations,” Paul-Emile stresses.

A one-size-fits-all rule will not work. Not all requests for a physician of a different race are the same. “There are some instances where a patient request based on ethnicity could be clinically or ethically appropriate,” Paul-Emile observes.

A sexual assault victim’s request for a gender-concordant physician typically is seen as appropriate. Paul-Emile says the same is true of some requests for race-concordant physicians. A physician could remind a veteran with post-traumatic stress disorder of a former enemy combatant. An older African-American patient in the South might have misgivings about seeing a white physician due to previous personal experiences with bias or an overall profound lack of trust in the healthcare system.

“In the interest of the therapeutic relationship, it might make sense to accommodate the request,” says Paul-Emile, noting the key is to unpack what is behind the request. “Some patients are not so much rejecting a provider as asking for a provider who they feel understands their culture and experience.” Policies can help providers sort it all out. If providers believe they have reached an impasse, ethicists can elicit what is behind the patient’s request.

“Patients may not be upfront with the physician. A neutral third party can be helpful,” Paul-Emile suggests.

The patient’s mental state has to be evaluated. In some cases, requests for nurses or physicians of a different race are driven by cognitive impairment (e.g., an intoxicated patient). Providers should not try to figure out all this alone.

“There should be rules and procedures for when an ethics consult is going to be called, and in what types of situations would accommodation be ethically and clinically appropriate,” Paul-Emile says.

Policies should support clinicians most likely to be rejected by patients and staff who witness the encounters and do not know how to react. “There needs to be a full institutional plan that involves everyone,” Paul-Emile offers.

Most hospitals do not have such policies in place. Those that do vary widely. “They are all over the map,” Paul-Emile says. “Some have zero tolerance. Others read more like difficult patient policies as opposed to addressing bias, which requires more nuance.”

Even if hospitals have created policies for how requests should be handled, it is a good time to revisit them. “It’s hard to talk about race and bias in the workplace. In this moment, people are finding those conversations are easier to have,” Paul-Emile says.

It is not just racism. Healthcare providers occasionally face religious intolerance, sexism, and ageism. “Regrettably, these are fairly common forms of discrimination and prejudice members of the health profession face on a regular basis,” says Blair Henry, D. Bioethics, a senior ethicist at Sunnybrook Health Sciences Centre and North York General Hospital in Toronto, both part of the Health Ethics Alliance.

Staff often deal with the situation without involving ethics. “One of our biggest challenges is to get staff to even report these events. We’ve done a lot of education on this topic,” says Henry, an assistant professor in the department of family and community medicine at the University of Toronto.

Ethics has provided clinicians with an outline on how to fairly and consistently respond to these situations. “Yet the spirit of maximal accommodation, and a misguided understanding of what patient-centered care means, has frequently clouded judgments when it comes to appropriately dealing with any form of discrimination,” Henry says.

Sometimes, racism is overt. Other times, patients or family ask for a change of healthcare provider for valid personal or cultural reasons. For ethics, the first step is to assess the capacity of the person. “Are they able to understand their behavior and to control it, even if we insisted on it?” Henry asks.

In some cases of cognitive impairment and dementia, this may not be realistic. “However, this does not remove the need to protect and support the healthcare professional,” Henry notes.

Assuming patients are not cognitively impaired, says Henry, “then immediate action is called for.” First, the patient or family member is educated about the zero-tolerance policy for any form of racism. Next, ethicists try to determine what is underlying the request for another provider.

“This should happen even in cases where humor was the intended outcome, where people infer no derogatory or harmful intent. That’s what zero tolerance means,” Henry explains.

There may be a valid reason for requesting a care provider from another race, culture, or gender. Cases involving individual trauma or religious or cultural values are examples. “We need to listen and acknowledge the concerns being expressed. However, it does not mean we automatically acquiesce,” Henry reports. Assuming there is a reasonable basis for the request, and it is possible for another provider to take over the patient’s care, the first provider is given the opportunity to recuse themselves. Patients and families are told that the change in providers is going to mean unnecessary delays to care. “We need to be ready to have more challenging conversations when and where these events occur,” Henry adds. “It’s the right thing to do.”

REFERENCES

  1. Paul-Emile K, Critchfield JM, Wheeler M, et al. Addressing patient bias toward healthcare workers: Recommendations for medical centers. Ann Intern Med (in press 2020).
  2. Paul-Emile K, Smith AK, Lo B, Fernández A. Dealing with racist patients. N Engl J Med 2016;374:708-711.
  3. Natividad I. Racist harassment of Asian health care workers won’t cure coronavirus. Berkeley News. April 9, 2020.
  4. Williams v. Beaumont Health Sys., Case No. 18-12522 (E.D. Mich. Aug. 26, 2019).