California's plan to confront doctor bias is under legal attack

Anesthesiologist from Los Angeles Dr. Marilyn Singleton was outraged by a California requirement that all continuing medical education must include training implicit bias — the ways in which physicians' unconscious attitudes might contribute to racial and ethnic disparities in health care.

Singleton, who is black and has been practicing for 50 years, sees calling out doctors for implicit bias as divisive, and argues that the state cannot legally require her to teach the idea in her continuing education classes. She has sued the Medical Board of Californiaasserting a constitutional right not to teach something she does not believe in.

The way to address health care disparities is to target low-income people for better access to care, rather than “shaking your finger” at white doctors and shouting “racist,” she said. “I think it is an insult to my colleagues to suggest that they will not be a good doctor if a racially diverse patient stands in front of them.”

The lawsuit is part of a national crusade by right-wing advocacy and legal groups against diversity, equity and inclusion (DEI) initiatives in healthcare. The backlash is inspired in part by last year's U.S. Supreme Court ruling banning affirmative action in higher education.

The California lawsuit does not challenge the state's authority to require implicit bias training. It just questions whether the state can require all teachers to discuss implicit bias in their continuing medical education. However, the outcome of the lawsuit could impact mandatory implicit bias training for all licensed professionals.

Leading the load is the Pacific Legal Foundation, a Sacramento-based organization that describes itself as a “national public interest law firm that defends Americans against government overreach and abuse.” Her clients include the action group Do no harm, founded in 2022 to combat positive discrimination in medicine. The two groups have also joined forces to sue the Louisiana Medical Board and the Tennessee Podiatry Board for reserving board seats exclusively for racial minorities.

In their complaint against the California Medical Board, Singleton and Do No Harm join forces with a Los Angeles ophthalmologist Dr. Azadeh Khatibiargue that the training requirement for implicit bias violates the 1st Amendment rights of physicians who provide continuing medical education by requiring them to discuss how unconscious biases based on race, ethnicity, gender identity, sexual orientation, age, socioeconomic status, or disability may alter treatment.

“It's the government telling doctors to say things, and that's not what our free nation stands for,” said Khatibi, who immigrated to the U.S. from Iran as a child. Unlike Singleton, Khatibi does believe that implicit biases can unintentionally lead to substandard care. But, she said, “in principle I don't believe in the government's compelling speech.”

The lawsuit challenges the evidence of implicit bias in health care and says there is no evidence that efforts to reduce bias are effective. Interventions have so far produced no lasting effects, studies have found.

In December, U.S. District Judge Dale S. Fischer dismissed the lawsuit but allowed the Pacific Legal Foundation to file an amended complaint. A hearing is scheduled for March 11 in federal court in Los Angeles.

In establishing the training requirement, the California Legislature determined that physicians' biased attitudes unwittingly contribute to health care disparities. The study also found that racial and ethnic disparities in health care outcomes are “remarkably consistent” across a range of diseases and persist even after adjusting for socioeconomic differences, whether patients are insured and other factors that influence care.

Black women are three to four times as likely as white women dying from pregnancy-related causesare often prescribed less pain medication than white patients with the same complaints, and are referred less often for advanced cardiovascular procedures, the legislator notes.

It also noted that women treated by female doctors were more likely to survive heart attacks than women treated by men. This month, the Legislature's Black Caucus unveiled a bill that would require implicit bias training for all maternal health providers in the state.

Dr. Khama Ennis, who gives a class of implicit bias to Massachusetts doctors, sees only the best intentions in her fellow doctors. “But we are also human,” she said in an interview. “And not to recognize that we are as susceptible to bias as anyone else in any other field is unfair to patients.”

Ennis gave an example of her own bias during a training session. While preparing to treat a patient in a hospital emergency room, she noticed a tattoo of the Confederate flag on his forearm.

“As a black woman, I had to have a conversation with myself,” she said. “I had to make sure I gave him the same care that I would give to anyone else.”

Ennis's class meets the requirements of a Massachusetts law that starting in 2022, physicians will receive two hours of instruction in implicit bias to obtain or renew their licenses.

That same year, California started making demands that all accredited continuing medical education courses involving direct patient care include the discussion of implicit bias. The state requires 50 hours of continuing education every two years so doctors can maintain their licenses. Private institutions offer courses on a range of topics, and physicians typically teach these.

Teachers can tell students they don't believe implicit bias causes health care disparities, Fischer wrote in her December ruling. But the state, which licenses doctors, has the right to decide what should be included in the classes, the judge wrote.

Professionals who choose to teach courses “must communicate the information that the legislature requires physicians to have,” the judge wrote. “When they do that, they are not speaking for themselves, but for the state.”

Whether they speak for themselves or for the state is a crucial question. Although the First Amendment protects private citizens' right to freedom of speech, that protection does not extend to government speech. For example, the content of public school curricula is the speech of the state government, not the speech of teachers, parents or students, courts have said.

The Pacific Legal Foundation's amended complaint seeks to convince the judge that its clients are teaching as private citizens with First Amendment rights. If the judge rules differently again, lead lawyer Caleb Trotter said he plans to appeal the decision to the U.S. Court of Appeals for the 9th Circuit and, if necessary, to the Supreme Court.

“This is not a government speech at all,” he said. “It is private speech and the First Amendment should apply.”

“Plaintiffs are clearly wrong,” lawyers say Rob Bonta, the attorney general, responded in court filings. “There can be no doubt that the state shapes or controls the content of advanced medical education.”

The medical board declined to comment on the ongoing lawsuit.

From 2019 through July 2022, in addition to California and Massachusetts, four states Legislation has been passed requiring health care providers to be trained in implicit bias.

A landmark 2003 Institute of Medicine report: “Unfair treatment,” found that limited access to care and other socioeconomic disparities explain only a portion of the racial and ethnic disparities in treatment outcomes. The panel of experts concluded that doctors' prejudices could also contribute to this.

In the two decades since the report's publication, studies have documented that bias influences clinical care and contributes to racial disparities. a 2022 report said.

But implicit bias training may have no impact and may even worsen discriminatory care, the report found.

“There's no real evidence that it works,” Khatibi said. “For me, addressing healthcare inequality is very important because lives are at stake. The question is: how do you want to achieve these goals?”

KFF Health NewsFormerly known as Kaiser Health News, is a national newsroom that produces in-depth journalism on health issues.

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