Los Angeles anesthesiologist Dr. Marilyn Singleton was outraged by California's requirement that every continuing medical education course include training in implicit bias—the ways doctors' unconscious attitudes could contribute to racial and ethnic disparities. in medical care.
Singleton, who is Black and has practiced for 50 years, finds calling doctors out for implicit bias 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 California, claiming that she has a constitutional right not to teach something she does not believe.
The way to address health care disparities is to target low-income people for better access to care, rather than “shaking the finger” at white doctors and yelling “racist,” he said. “It seems an insult to my colleagues to imply that they will not be good doctors if they have a racially divergent patient in front of them.”
The litigation is part of a national crusade by right-wing legal and advocacy groups against diversity, equity and inclusion, or DEI, initiatives in health care. The resistance is inspired in part by last year's ruling by the U.S. Supreme Court banning affirmative action in higher education.
California's lawsuit does not challenge the state's authority to require implicit bias training. It only questions whether the state can require all faculty to discuss implicit bias in their continuing medical education courses. However, the outcome of the lawsuit could influence mandatory implicit bias training for all licensed professionals.
Leading the charge is the Pacific Legal Foundation, a Sacramento-based organization that describes itself as a “national public interest law firm that defends Americans from government abuses and overreach.” Among its clients is the activist group Do No Harm, founded in 2022 to fight affirmative action in medicine. The two groups have also joined forces to sue the Louisiana medical board and the Tennessee board of podiatry for reserving seats on the board exclusively for racial minorities.
In their complaint against the Medical Board of California, Singleton and Do No Harm, along with Los Angeles ophthalmologist Dr. Azadeh Khatibiargue that the implicit bias training requirement violates the First Amendment rights of physicians who teach continuing medical education courses by requiring them to discuss how unconscious biases based on race, ethnicity, gender identity, sexual orientation, age , socioeconomic status or disability can alter treatment.
“It's the government that says doctors should say things, and that's not what our free nation stands for,” said Khatibi, who immigrated to the United States from Iran as a child. Unlike Singleton, Khatibi believes that implicit bias can unintentionally lead to poor care. But, he said, “on principle, I do not believe in the government's convincing speech.”
The lawsuit questions evidence of implicit bias in health care, saying there is no evidence that efforts to reduce bias are effective. So far, the interventions have not shown lasting effects, according to studies.
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 enacting the training requirement, the California Legislature found that doctors' biased attitudes unwittingly contribute to health care disparities. It also found that racial and ethnic disparities in health care outcomes are “remarkably consistent” across a variety 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 more likely than white women to die from pregnancy-related causes, are often prescribed fewer pain medications than white patients with the same complaints, and are referred less frequently for advanced cardiovascular procedures. , the Legislature found.
He also noted that women treated by female doctors were more likely to survive heart attacks than those treated by men. This month, the Legislature's Black Caucus unveiled a bill requiring implicit bias training for all maternity care providers in the state.
Dr. Khama Ennis, who teaches a class on implicit bias for doctors in Massachusetts, sees only the best intentions in her medical colleagues. “But we're also human,” she said in an interview. “And not recognizing that we are just as susceptible to bias as anyone else in any other field is unfair to patients.”
Ennis offered an example of his own bias in a training session. While he was preparing to treat a patient in a hospital emergency room, he noticed a tattoo of the Confederate flag on his forearm.
“As a black woman, I had to have a brief conversation with myself,” she said. “I needed to make sure I gave him the same level of care as anyone else.”
Ennis' class meets the requirements of a Massachusetts law that states that doctors get two hours of instruction in implicit bias to obtain or renew their licenses, starting in 2022.
That same year, California began requiring all accredited continuing medical education courses involving direct patient care to include a discussion of implicit bias. The state requires 50 hours of continuing education every two years for doctors to maintain their licenses. Private institutions offer courses on a variety of topics and are usually taught by doctors.
Professors can tell students that they do not believe implicit bias drives disparities in health care, Fischer wrote in his 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 so, they do not speak for themselves, but for the State.”
Whether they speak for themselves or for the State is a fundamental question. While the First Amendment protects the right of private citizens to free speech, that protection does not extend to government speech. The content of public school curricula, for example, 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 aims to convince the judge that its clients teach as private citizens with First Amendment rights. If the judge again rules otherwise, said lead attorney Caleb Trotter, 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's private speech and the First Amendment should apply.”
“Plaintiffs are clearly wrong,” lawyers for Rob Bonta, the state attorney general, responded in court papers. “There can be no doubt that the State determines or controls the content of continuing medical education courses.”
The medical board declined to comment on the pending litigation.
From 2019 to July 2022, in addition to California and Massachusetts, four states enacted laws requiring health care providers to be trained in implicit bias.
A landmark 2003 Institute of Medicine report, “Unequal Treatment,” found that limited access to care and other socioeconomic differences explain only a portion of racial and ethnic disparities in treatment outcomes. The expert panel concluded that doctors' biases could also contribute.
In the two decades since the report was published, studies have documented that bias influences clinical care and contributes to racial disparities, according to a 2022 report.
But training based on implicit bias may have no impact and could even worsen discriminatory attention, the report found.
“There's really no evidence that it works,” Khatibi said. “To me, addressing health care disparities is really important because lives are at stake. The question is, how do you want to achieve these ends?”
KFF Health NewsFormerly known as Kaiser Health News, it is a national newsroom that produces in-depth journalism on health issues.
