American Journal of Law & Medicine

Clinical uncertainty and healthcare disparities.

I. INTRODUCTION

The Institute of Medicine Report, Unequal Treatment: Confronting Racial and Ethnic Disparities, affirms in its first finding: "Racial and ethnic disparities in healthcare exist and, because they are associated with worse outcomes in many cases, are unacceptable." (1) The mechanisms that generate racial and ethnic disparities in medical care operate at the levels of the healthcare system and the clinical encounter. Research demonstrates the role of healthcare system factors, including differences in insurance coverage and other determinants of healthcare access, in producing disparities. Research also shows, however, that even when insurance status and other measures of access are controlled for by statistical methods, racial and ethnic disparities persist. These disparities remain when researchers try by various methods to control for patients' clinical characteristics. Disparities are especially well documented through comparisons between white patients and African Americans and Latinos, but they are believed to affect other minority groups. As a result, many members of minority racial and ethnic groups receive less or inferior care. (2) The purpose of this Article is to explore how one factor we regard to be key--provider and patient uncertainty about clinical decisions---contributes to disparities arising from the doctor-patient encounter.

Uncertainty is a powerful force in medicine. Wennberg argues that uncertainty is the most important single influence on physician behavior. (3) He divides clinical uncertainty into several categories--uncertainty about the nature of the patient's disease condition or health status, uncertainty about the effectiveness of a treatment even under ideal conditions and uncertainty about patient preferences and values. Arrow's cornerstone paper in health economics seeks to understand the medical care sector's special institutional characteristics and behavioral norms as social adaptations to clinical uncertainty. (4) Uncertainty also pervades the legal and regulatory governance of the health sphere, undermining efforts to pursue fairness and efficiency through public policy. (5)

In what follows, we stress several roles for uncertainty as a contributor to healthcare disparities. First, uncertainty opens the way for myriad subjective influences on physicians' diagnostic and therapeutic assessments. The uncertainty of which we speak has a number of sources. These include ambiguity as to the diagnostic implications of clinical symptoms, signs and laboratory tests; incomplete information about the efficacy of diagnostic and therapeutic interventions; and unresolved differences of opinion about how to value potential clinical outcomes. These sources of uncertainty create wide space for clinical discretion. Subjective influences, including unfavorable stereotypes and attitudes about social groups, shape the exercise of this discretion. (6)

A second role for uncertainty has a very different character. Well-meaning clinicians, trying to act in their patients' best interests, look to gather as much information as they can, within time and resource constraints, concerning their patients' needs and interests, both biological and psychological. To do so, physicians must communicate with their patients--and listen closely to what patients have to say. If physicians, as a group, communicate less well with their minority patients than with Whites, greater uncertainty about minority patients' needs and interests results. This "uncertainty gap," we contend, can produce disparate treatment of patients from different racial and ethnic groups even in the absence of physician-held stereotypes or prejudice. Evidence suggests that such an uncertainty gap exists--that there is more "noise" in the communication "signal" when doctor and patient belong to different racial or ethnic groups with correspondingly different cultural patterns and styles.

Third, patients who are, if anything, even more uncertain about the value of medical interventions than are their doctors, (7) make their own interactive assessments of the quality and reliability of their doctors' judgments. (8) Patient uncertainty ensuing from "noise" in the communication "signal" between doctor and patient will reduce rationally-acting patients' reliance upon physician judgment; this, in turn, will yield reduced patient compliance with recommended treatment (and diminished inclination to seek medical consultation in the first place). Racial and ethnic disparities in the level of "noise" in this "signal" will thus produce disparities in patients' inclinations to seek out and rely upon medical advice. Perceptions or expectations by minority patients concerning white physicians' propensity toward racial and ethnic stereotypes and biases can be expected to widen these disparities in patient behavior.

In the next two sections, we expand on these arguments about the role of uncertainty in healthcare disparities, drawing, where possible, on the supporting evidence. It is likely, we argue, that the multiple ways by which uncertainty can generate disparities operate simultaneously in many clinical contexts. A crucial question from a legal and public policy perspective is whether and how the various organizational and financial arrangements associated with managed care operate to aggravate or reduce healthcare disparities. In the fourth section of this Article, we consider how some of these arrangements, including financial rewards for clinical frugality, affect the role of uncertainty in generating healthcare disparities.

II. CLINICAL UNCERTAINTY, DISCRETION & BIAS

A. CLINICAL UNCERTAINTY

"Some questions cannot be answered no matter how diligently one searches the literature, no matter which expert one consults." (9)

For all its advances, the practice of modern medicine involves a great deal of scientific uncertainty and therefore involves a great deal of discretion on the part of doctors and other clinician. (10) Healthcare providers operate at best within what Simon termed "bounded rationality" (11)--reasoned decision-making based on fully-informed assessment of all possible contingencies is beyond health professionals' reach. The call for development of "evidence-based medicine" reflects the limits of the science base upon which current clinical practice is founded. In many--perhaps most--medical situations, clinicians lack the systematic health outcomes data necessary to compare, in scientific fashion, the expected efficacy of diagnostic and therapeutic alternatives. (12) Neither health insurance contracts nor ethical and legal rules do a great deal to narrow the resulting clinical discretion. (13) Contractual language in private health plans does not set clear limits. Insurance contracts typically require that a plan provide coverage for "medically necessary" services, subject only to provider network restrictions and to the requirement that care not be "investigational" or "experimental." The opaque term "medical necessity" is not defined in health plan contracts; it therefore must be subject to the interpretation of providers and utilization managers. Medicare and Medicaid are similarly nondirective about providers' decisions; the statutory language establishing both programs requires coverage when "medical necessity" is present. Incorporation of detailed clinical practice protocols into health insurance contracts (and the regulations that govern public programs) could in theory constrain providers' discretion. But, this rule-based approach encounters serious practical obstacles. Uncertainty about the efficacy of many diagnostic and therapeutic alternatives makes it impossible to base comprehensive clinical practice protocols entirely, or even largely, on science. This makes use of such protocols easy to challenge and difficult to defend. Moreover, uncertainty and subjectivity in the assessment of particular patients' conditions leave much space for discretion when doctors decide which practice protocols to apply. (14)

Medical ethics, in theory, could constrain healthcare providers' discretionary judgment, but the evolution of ethical theory has not taken such a course. The Hippocratic ethical tradition emphasizes physicians' loyalty (to patients), good intentions and commitment to learning and good craftsmanship, but it does not set forth principles or rules to channel clinical discretion. The contemporary bioethics movement's emphasis on patient autonomy entails an effort to keep provider discretion within the bounds of respect for patient preferences, but providers have broad scope for discretion in their presentation of risks, benefits and alternatives to their patients. Likewise, medical tort law's approach to the setting of legal standards of care defers to physicians' practice norms as sources of standards. (15) The U.S. Supreme Court's recent decision in Rush Prudential HMO, Inc. v. Moran (16) extended this deferential approach to the law governing health insurers' coverage denials in most states. The Court characterized state-mandated independent review of insurers' "medical necessity" determinations as akin to a medical "second opinion" (17) and thus a matter of professional judgment. …

Log in to your account to read this article – and millions more.