Marilyn Singleton, an anesthesiologist in Los Angeles, California, wants all continuing medical education courses to include training about implicit bias, or how doctors' unconscious attitudes can contribute to racial and ethnic disparities in health care. He was furious at what the state was demanding.
Singleton, who is Black and has been a doctor for 50 years, believes accusing doctors of implicit bias is divisive, and the state should teach her that idea in continuing education classes. They argue that it cannot be legally mandated. She sued the California Medical Board, asserting her constitutional right not to teach what she did not believe.
The way to address health care disparities, she said, is to target low-income people to get better health care, rather than “waving your head around” and calling white doctors “racist.” “I think it's an insult to her colleagues to suggest that you can't be a good doctor if you have patients of different races in front of you.”
The lawsuit is part of a nationwide movement by right-wing advocacy and legal groups opposing diversity, equity, and inclusion (DEI) efforts in health care. The backlash stems in part from last year's U.S. Supreme Court decision banning affirmative action in higher education.
The California lawsuit does not challenge the state's authority to mandate implicit bias training. This issue simply asks whether states can require all teachers to discuss implicit bias in continuing medical education courses. However, the outcome of the lawsuit could impact mandatory implicit bias training for all qualified professionals.
At the forefront of this effort is the Sacramento-based Pacific Law Foundation, which describes itself as a “national public interest law firm that protects Americans from government overreach and abuse.” Clients include Do No Harm, an activist group founded in 2022 to fight affirmative action in health care. The organizations also worked together to sue the Louisiana Board of Medical Examiners and the Tennessee Board of Podiatrists for reserving board seats only for racial minorities.
In their complaint to the Medical Board of California, Dr. Singleton and Dr. De No Harm, along with Dr. Azadeh Khatibi, a Los Angeles ophthalmologist, argue that training requirements with implicit bias are against doctors teaching continuing medical education courses. , alleges that it violates First Amendment rights by requiring how it is debated. Unconscious bias based on race, ethnicity, gender identity, sexual orientation, age, socio-economic status, or disability can alter treatment.
“It's the government that says doctors have to speak out, 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 result in substandard care. However, she said: “In principle, I do not believe in forced government speeches.”
The lawsuit challenges evidence of implicit bias in health care and argues there is no evidence that efforts to reduce bias are effective. So far, studies have found that interventions have not demonstrated durable effects.
In December, U.S. District Judge Dale S. Fisher dismissed the lawsuit but allowed the Pacific Law Foundation to file an amended complaint. A hearing is scheduled for March 11 in federal court in Los Angeles.
In enacting training requirements, the California Legislature discovered that physicians' biased attitudes were unwittingly contributing to health care disparities. Racial and ethnic disparities in health care outcomes are also “remarkably consistent” across a variety of diseases, including socioeconomic differences, whether patients have insurance, and other factors that influence care. It was also found that it persisted even after adjusting for
Black women are three to four times more likely to die from pregnancy-related causes than white women, are often prescribed fewer painkillers than white patients with the same symptoms, and have advanced cardiovascular disease. They are also less frequently referred for treatment, the council found.
They also noted that women treated by female doctors were more likely to survive a heart attack than women treated by men. This month, the California Congressional Black Caucus announced a bill that would require implicit bias training for all maternal caregivers in the state.
Karma Ennis, who teaches a class on implicit bias for doctors in Massachusetts, sees only good intentions in her fellow doctors. “But we're also humans,” she said in an interview. “And it would be unfair to patients to not acknowledge that we are just as susceptible to bias as people in other fields.”
Ennis provided an example of her own bias in a training session. As she prepared to treat a patient in the hospital's emergency room, she noticed a Confederate flag tattoo on the patient's forearm.
“As a Black woman, I had to have a quick talk with myself,” she said. “I needed to make sure I provided him with the same standard of care that I would give anyone else.”
As of 2022, Ennis' class meets a requirement under Massachusetts law that doctors obtain two hours of instruction on implicit bias when obtaining or renewing their license.
That same year, California began requiring all accredited continuing medical education courses that involve direct patient care to include a discussion of implicit bias. The state requires 50 hours of continuing education every two years to maintain a medical license. Private institutions offer courses on a variety of topics and are usually taught by physicians.
In his December ruling, Fisher said teachers could tell students they don't believe implicit bias causes health care disparities. But the state in which the doctor is licensed has the right to decide what must be included in the course, the judge wrote.
Professionals who choose to teach courses “must convey the information that the Legislature requires of health care professionals,” the judge wrote. “When they do that, they are speaking not for themselves, but for the nation.”
Whether they speak for themselves or for the nation is a crucial question. The First Amendment protects private citizens' right to free speech, but that protection does not extend to government speech. For example, courts have said that the content of public school curriculum is the speech of the state government, not the speech of teachers, parents, or students. In 1988, the U.S. Supreme Court ruled that the First Amendment did not apply to student journalists if their principal censored articles they wrote as part of the school's curriculum.
Pacific Law Foundation's amended complaint aims to convince the judge that its client teaches as a private citizen with First Amendment rights. Lead attorney Caleb Trotter told KFF Health News that if the judge rules differently again, he plans to appeal the decision to the Ninth Circuit Court of Appeals and, if necessary, to the Supreme Court.
“This is not a government speech at all,” he said. “This is private speech and the First Amendment should apply.”
“The plaintiffs are clearly wrong,” lawyers for state Attorney General Rob Bonta wrote in court documents. “There is no dispute that the state shapes or controls the content of continuing medical education courses.''
The medical board declined to comment on pending litigation.
Between 2019 and July 2022, four states, in addition to California and Massachusetts, enacted legislation requiring implicit bias training for health care providers.
The Institute of Medicine's landmark 2003 report, “Unequal Treatment,” found that limited access to treatment and other socioeconomic differences accounted for only part of racial and ethnic disparities in treatment outcomes. It turned out to be explained. The expert panel concluded that clinician bias may also contribute.
The 2022 report says that in the 20 years since its release, research has demonstrated that bias impacts clinical care and contributes to racial disparities.
However, the report says implicit bias training may have no impact and may even worsen discriminatory care.
“There's really no evidence that it works,” Khatibi said. “For me, addressing health disparities is very important because lives are at risk. The question is how do we want to achieve these objectives?”
This article was produced by KFF Health News, which publishes California Healthline, an editorially independent service of the California Health Care Foundation.
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