Can You Sue Over Racial Disparities?

gavelRacial health disparities in the United States have been repeatedly measured, demonstrated, and presented to the point where their existence is no longer in question. But still up for discussion is how to fix them, whether through sweeping legislation like this year’s federal health care reform, local efforts to improve health care access or social determinants of poor health, and/or by customizing care to better serve minority populations. But what about that time-honored American way of dealing with injustice and unfairness – why not tell disparities “I’ll see you in court!”?

The idea is not so far-fetched, said Anup Malani, a professor of law and medicine at the University of Chicago, in his lecture to the MacLean Center for Clinical Medical Ethics in early December. After all, the Civil Rights Act of 1964 was created to address segregation and inequality in schools, employment, and other important aspects of life, so why not medicine? History shows that Title VI of the Civil Rights Act, which forbids racial discrimination by any body that receives federal funds, was one of the most effective strategies ever in reducing racial health gaps. After its passage, hospitals and other medical providers (nearly all of whom receive federal funding in the form of Medicare/Medicaid), could no longer legally segregate patients into different wards or treat them with different personnel. The result was a rapid improvement of health care for black populations, and a brisk narrowing of the disparity in measures such as infant mortality, Malani said.

“It was a huge, huge success,” Malani said. “We spend a lot of time in law school thinking about the great civil rights successes in education, and we’re studying the wrong thing. In four months, you got 1,000 hospitals to integrate. This is unbelievable…One would like to achieve that sort of result again.”

But the rapid integration of American hospitals in the 1960’s only reduced the gap, it didn’t eliminate it. Some hospitals also exploited a loophole in Title VI and simply moved to more affluent, predominantly white communities, a strategy that turned out to be difficult to litigate in Title VI court cases. Because hospitals could plead at least one legitimate reason for the move – usually the argument that they would no longer be financially viable in the inner city – the charges of civil rights violation were denied. Other limitations of civil rights cases, including federal limits on damages, high cost, slow pace, and inadequate penalties, also make Title VI the wrong weapon to use in fighting today’s racial disparities, Malani argued.

Those loopholes may have even created a major driver of health gaps, Malani’s research has found, in that a disproportionate number of minority (and poor) patients receive their treatment from the country’s worst-performing hospitals. This dynamic creates what Malani called a “between” disparity, where minorities receive care from lower-quality providers than white patients, rather than receiving poorer care from similar-quality providers. Statistics have supported that observation, showing that hospitals and ambulatory care centers that treat more minorities have lower scores on measures such as mortality.

Therefore, though it hurt Malani to admit it (“it’s awkward for me as a lawyer to say I’m not the solution,” he joked), the most effective strategy may not be litigation but policy efforts to help the low-performing hospitals. Improve the statistics of these health care providers, and you hopefully reduce the racial gap by reducing “between” disparities.

“Let’s send funds to these hospitals,” Malani said. “If you just target the worst hospitals in America, you’re going to disproportionately help minorities.”

Of course, merely throwing money at problems has a bad track record. So Malani endorsed the idea of rewarding quality at low-performing hospitals, to drive improvement on rates of infant mortality or mortality after heart attack. Incentives should work better than the threat of legal punishment, he argued, because the worst hospitals are already struggling financially.

“The answer should not be penalties, because you’ve already got a low-performing facility,” Malani said. “In some sense, that’s what civil rights statutes do, they penalize the worst hospitals. But this is a hospital without the money in the first place, so that’s not helping the blacks at those hospitals. What you want to do instead is reward gains in reducing the black-white disparity.”

http://medicine.uchicago.edu/centers/ethics/videos/malani/player.swf

[Each academic year, the MacLean Center for Clinical Medical Ethics organizes a series of lunchtime seminars by physicians, biologists, economists, social scientists and other experts covering the biggest questions in health care and ethics. This year’s theme is “Health Disparities: Local, National, Global,” and the series was put together with the Urban Health Initiative, the Global Health Initiative, and Finding Answers. ScienceLife will carry regular coverage of this unique series, and will link to video of the lectures when provided by the MacLean Center.]

About Rob Mitchum (526 Articles)

Rob Mitchum is communications manager at the Computation Institute, a joint initiative between The University of Chicago and Argonne National Laboratory.

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