It’s been called one of medicine’s “open secrets”—allowing patients to refuse treatment by a doctor or nurse of another race.
In the latest example, a white man with a swastika tattoo insisted that black nurses not be allowed to touch his newborn. Now two black nurses are suing the hospital, claiming it bowed to his illegal demands.
The Michigan cases are among several lawsuits filed in recent years that highlight this seldom-discussed issue, which quietly persists almost 60 years after the start of the civil rights movement.
The American Medical Association’s ethics code bars doctors from refusing to treat people based on race, gender and other criteria, but there are no specific policies for handling race-based requests from patients.
Tonya Battle, a veteran nurse at Flint’s Hurley Medical Center, filed the first complaint against the hospital and a nursing manager, claiming a note posted on an assignment clipboard read, “No African-American nurse to take care of baby.” She says the note was later removed but black nurses weren’t assigned to care for the baby for about a month because of their race.
That case is now a federal lawsuit. In a statement earlier this week, Hurley President Melany Gavulic denied Battle’s claim, saying the father was told that his request could not be granted. Gavulic said the swastika tattoo “created anger and outrage in our staff,” and supervisors raised safety concerns.
The Michigan cases follow a 2010 decision by the 7th U.S. Circuit Court of Appeals, which held that the federal Civil Rights Act prohibits nursing homes from making staffing decisions for nursing assistants based on residents’ racial preferences. The ruling stemmed from a lawsuit filed by a black nursing assistant who sued her employer for racial discrimination.
Fordham University law professor Kimani Paul-Emile said she suspects nurses file more discrimination suits than doctors.
“With nurses and other sorts of staff, the hospital is telling them they can or cannot do something,” she said. “That might go to why you might see more lawsuits brought by nurses.”
She wrote an article last year in the UCLA Law Review titled “Patients’ Racial Preferences and the Medical Culture of Accommodation.” It was the source of the “open secrets” phrase.
Paul-Emile’s research cited a 2007 study at the University of Michigan Health System and others on how physicians respond to patients’ requests to be assigned providers of the same gender, race or religion.
The survey of emergency physicians found patients often make such requests, and they are routinely accommodated. A third of doctors who responded said they felt patients perceive better care from providers of shared demographics, with racial matches considered more important than gender or religion.
Another study she cited found that patient requests for care by a physician are most often accommodated when made by racial minority patients.