How to Handle a Racist Patient with Residents & Fellows
7-8 Minute Read
Author: Judy Bolstad-Hanrahan, JD, MA
Purpose
To provide clinician educators with a framework for addressing patient requests to have a graduate trainee removed from their care team based on race, sex, religion, or other protected status.
Learning Objectives
Recall that when a trainee transfers care of a patient who has been discriminatory to them to a senior clinician, no other trainee should be involved with the care of that particular patient, even if the trainee voluntarily transferred the care; and
Describe two professional responsibilities that physicians must take into account when a patient makes a discriminatory request to be seen by a different provider.
How do you respond to a patient’s demand to be seen by a different provider, to be cared for by a different nurse, or to exclude a trainee based on race, ethnicity, sex, gender identity, disability, or religious beliefs? The answer to this question differs depending on the clinical setting and position of the person who the patient wants to exclude. You may recall from How to Handle a Racist Patient with Medical Students that patients have an unequivocal right to exclude medical students from their care. For graduate trainees, residents and fellows, the analysis depends on the severity of the patient’s condition, the trainee’s status as an employee, and the institution’s policies, procedures, and legal obligations.
The difference in treatment between medical students and residents or fellows, at least in the United States, owes to the fact that residents and fellows are employees. Employed physicians are protected by a patchwork of federal, state, and local anti-discrimination laws.(1-4) A different set of laws protect students from discrimination in their education(5-7); some courts find that residents and/or fellows are additionally protected by these laws because the process of residency and fellowship training is educational in nature.(8-10) This provides residents and fellows with additional avenues to seek redress for discrimination, but it does not change the employment protections afforded to residents and fellows.
You might be surprised to learn that anti-discrimination laws require employers to protect their employees from the discriminatory acts of others in the workplace including customers, patrons, and contractors. In healthcare this means that a hospital or medical office must take some action when a patient makes a racist, sexist, homophobic or other discriminatory comment or request. It further means that medical staffing decisions cannot be made on impermissible grounds. There are limited cases where courts have found that when a patient’s privacy or modesty concerns are at issue, such as in labor and delivery or with personal care attendants for psychiatry patients, it may be permissible to make staffing assignments based on sex concordance between the patient and a healthcare worker.(11-12) This reasoning has yet to be applied to physicians because, “physicians commonly decide among themselves how to address reassignment requests and thus probably are not often forced by a hospital employer to accommodate such requests.”(13 p709)
An important element of physician practice is exercising independent medical judgment. Decisions about which providers are best suited to care for a particular patient, especially in a hospital setting, are made by physicians amongst themselves. Physicians learn the customs related to this aspect of medical practice during training. It is the attending’s job to guide residents and fellows through this process when a patients makes a discriminatory request; the patient’s medical condition, decision-making capacity, reason for making the request, and the availability of other staff must all be considered.
Severity of Patient’s Medical Condition & Decision-Making Capacity
The Emergency Medical Treatment and Labor Act requires that hospitals must stabilize patients who come to the hospital in emergency situations and provide care to those in active labor.(14) Generally, patients have the right to decide who provides medical care for them. As you may recall from How to Handle a Racist Patient with Medical Students, patients have an unequivocal right to exclude medical students from their care. The principle of patient autonomy, rooted in ethics and the law of battery, provides that patients have the ultimate authority to make their own medical decisions. In emergency situations, physicians are legally permitted to provide aid because patient consent is presumed. Decision making capacity is a prerequisite to patient autonomy; therefore, when a person lacks decision making capacity, a surrogate decision maker must be identified to make the decision.
Physician Professional Responsibilities
Physicians do not have a corresponding right to refuse to provide medical care. Physicians are bound by professional ethics to act in the best interests of their patients and to ensure continuity of care for patients under their care. If a patient is unstable and in the middle of a medical emergency, but retains decision making capacity, providers have an ethical obligation to try to work towards a solution with the patient to address the medical emergency. If there are other providers willing and able to take the patient, the physician should, of their own accord, transfer care to the other provider. A resident or fellow should not be required to hand over the care of a racist patient if they decline. An attending should spend some time talking to the trainee about their professional responsibilities and get their assent. If a trainee refuses, the best course of action would be to contact the hospital’s legal counsel.
As with medical students, if a trainee is removed from the care of a particular patient for a discriminatory reason, no other trainee should see the patient. The patient should be cared for only by attendings. This ensures that the resident or fellow is not denied an educational opportunity for a discriminatory reason.
Availability of other Providers
Depending on the availability of other providers, a physician may find themselves in a situation where they are the only available physician or the only physician with the skill set necessary to help the patient. In these circumstances, it is incumbent on the physician to try to find a solution that will get the patient in stable condition. This may mean getting the patient’s informed consent to have a junior member of the care team perform some of the care under the guidance of the physician. The patient must be informed that this is not the standard of care and the consent process must be explicitly documented. The physician must make it clear that they will continue to direct the patient’s care. Keep in mind that the physician should not ask a member of the care team to perform functions that are outside of their scope of practice. So a nurse might be tasked with getting vitals from a patient that does not want to be touched by the particular physician, but they should not be asked to perform a procedure that would subject them to discipline under their licensure rules.
Stable Patient
If a stable patient is making discriminatory requests the provider has a variety of options available including assisting the patient in transferring to a different facility, transferring the patient’s care to a different provider, asking the patient to sign a behavior contract, or structuring some other method of assessment and care. See the “Considerations” section in How to Handle a Racist Patient with Medical Students for more guidance on how to handle a bigoted comment or request with a patient.
References
Civil Rights Act of 1964 §7, 42 U.S.C. §§ 2000a – 2000e (as amended).
The Equal Pay Act of 1963, 29 U.S.C. §206(d) (as amended).
The Age Discrimination in Employment Act, 29 U.S.C. §623.
Title I of the Americans with Disabilities Act §1, 42 U.S.C. §12101 et seq (as amended).
Title VI of the Civil Rights Act of 1964. 42 US Code §2000d et seq.
Title IX of the Education Amendments of 1972. 20 US Code §1681-1688.
Section 504 of the Rehabilitation Act of 1973. 29 US Code §794.x
Doe v Mercy Catholic Medical Center, 850 F.3d 545 (United States Court of Appeals, 3rd Cir 2017).
Lipsett v Univ. of Puerto Rico, 864 F.2d 881 (United States Court of Appeals, 1st Cir 1988).
Preston v Commonwealth of Virginia ex rel. New River Community College, 31 F.3d 203 (4th Cir 1994).
Healey v. Southwood Psychiatric Hosp., 78 F.3d 128 (3d Cir. 1996).
EEOC v. Mercy Health Ctr., No. Civ. 80-1374-W, 1982 WL 3108 (W.D. Okla. 1982).
Paul-Emile K, Smith AK, Lo B, Fernández A. Dealing with Racist Patients. N Engl J Med. 2016;374(8):708-711. doi:10.1056/NEJMp1514939.
Emergency Medical Treatment and Labor Act. 42 US Code §1395dd.