By JEFF KAROUB
Associated Press
DETROIT (AP)
-- 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.
"In
general, I don't think honoring prejudicial preferences ... is morally
justifiable" for a health care organization," said Dr. Susan Goold, a
University of Michigan professor of internal medicine and public health.
"That said, you can't cure bigotry ... There may be times when
grudgingly acceding to a patient's strongly held preferences is morally
OK."
Those times could include patients who
have been so traumatized - by rape or combat, for instance - that
accommodating their care request would be preferable to forcing on them a
caregiving whose mere presence might aggravate the situation, she said.
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. Hospital officials said they planned to make a statement about
the matter Friday evening but offered no details.
Hurley
President Melany Gavulic said in a statement that the swastika tattoo
"created anger and outrage in our staff," and supervisors raised safety
concerns. Gavulic said the father was told that his request could not be
granted.
Multiple email and phone messages
left for Battle through her attorney were unreturned, and a listed
number for her had been disconnected. But she told the Detroit Free
Press she "didn't even know how to react" when she learned of her
employer's actions following her interaction with the father.
She
said she introduced herself to the man and he said, "I need to see your
supervisor." That supervisor, Battle said, told her that the father,
who was white, didn't want African-Americans to care for his child and
had rolled up his sleeve to expose the swastika.
"I
just was really dumbfounded," Battle said. "I couldn't believe that's
why he was so angry (and) that's why he was requesting my (supervisory)
nurse."
Attorney Tom Pabst, who is
representing nurse Carlotta Armstrong in a second lawsuit, said the
hospital's actions left the neonatal intensive care nurses "in a ball of
confusion."
"She said, `You know what really
bothered me? I didn't know what to do if the baby was choking or dying.
Am I going to get fired if I go over there?'" Pabst said.
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.
In another federal lawsuit
filed in 2005, three black employees of Abington Memorial Hospital near
Philadelphia claimed they were prevented from treating a pregnant white
woman by her male partner, who was a member of a white supremacist
group. The man used a racial slur when forbidding any care by any
African-Americans.
The complaint alleged that
supervisors honored the man's request. The case was settled
confidentially before going to trial, and the hospital admitted no
liability. Frank Finch III, the attorney for the employees, said
hospital officials also cited employee safety in their defense.
"That
defense doesn't fly under the anti-discrimination law," Finch said.
"Hospitals cannot use that as a defense in nonemergency situations."
He
said every hospital has a policy against discrimination and
"undoubtedly acquiescing to such a demand is a violation of a written,
internal policy in addition to being a violation of the law."
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.
"The notion of white patients
rejecting minority physicians for bigoted reasons in emergency
departments and other hospital settings is deeply troubling and
uncomfortably reminiscent of the type of discrimination that the civil
rights statutes were designed to eliminate," Paul-Emile wrote in her
article.
Another study she cited found that
patient requests for care by a physician are most often accommodated
when made by racial minority patients.
Lance
Gable, a law professor at Wayne State University in Detroit, said he
believes such requests "are made more often than we'd like to think
about" even if they aren't frequently agreed to by hospital management.
He suspects a supervisor might honor them but not say anything explicit
to employees and only in rare instances would signs be posted as alleged
in the Flint case.
"Maybe their explanation
is an accurate description of what happened - the supervisor was scared
of the father of this patient and made a decision that was ill-advised,"
Gable said. "It might have been the right thing to do for the safety of
the staff, and it still might be a violation of anti-discrimination
laws."
© 2013 The Associated Press modified.
