American Journal of Law & Medicine

Race, ethnicity and quality of care: inequalities and incentives.

   As was my custom, I moved from one exam room to the next with a fluidity 
   that comes from years of practice, yet I was stopped in my tracks when Mr. 
   North rose to his feet to greet me. His deep ebony, six foot-three-inch 
   frame dwarfed my pale, five-foot-three presence. The tremendous hands on 
   his 260 pound body grabbed my own outstretched right hand and shook it. ... 
   I glanced at his face, trying to see through my initial discomfort, only to 
   be greeted by my own face staring back at me from the silver, reflective 
   sunglasses he wore beneath a baseball cap that covered his head and any 
   hair that might have been growing on it. His huge chest was tightly wrapped 
   in a black T-shirt that, even in its largest version, couldn't stretch 
   comfortably to encompass his pectoral girth. ... 
   Mr. North became one of my favorite patients ... I like him because I 
   realize how hard I have had to work all of my life to overcome the racist 
   feelings that made me fear him when we first met and that never allow me to 
   act completely naturally in his presence.(1) 

Race matters. While Medicaid and Medicare have increased access to care for poor and minority Americans, they have not erased differences in the quality of care received by minorities, particularly poor minorities. Health care institutions and individual caregivers continue to provide different care to their minority patients than they give to those who are white. These treatment differentials have complex origins. Bias, prejudice, class and money all play a role. Nevertheless, differences based on race and ethnicity rather than medical need are medical mistakes.(2)

This article uses the Institute of Medicine ("IOM") report on quality and safety in health care, To Err Is Human: Building A Safer Health System,(3) as a template for thinking about race linked differentials in health care access and treatment. The theme of the IOM report is that efforts to improve quality of care should shift from blaming individuals for past errors to designing better systems to prevent future errors.(4) Similarly, attempts to reduce race-based disparities in medical care need to move from a backward looking focus on blame to designing systems that assure patients get medical care based upon their medical need and preferences rather than care that is mis-colored by their race and ethnicity.

Civil rights law has provided the legal framework for examining differentials in care for minority and poor people. Typically, civil rights enforcement, like malpractice litigation, focuses on identifying whom or what to blame. In malpractice, a plaintiff must establish the relevant standard of care, prove that the health care provider violated that standard and that the violation caused the patient's injury. In a civil rights case, blame is laid by proving the health care provider either intentionally discriminated or used policies, practices or procedures, that, while not intended to discriminate, have an unjustified, disproportionate adverse impact on minority patients.(5)

Civil rights litigation, like medical malpractice, can redress some race-based medical errors. However, racial disparities in medical treatment are the result of multiple, complicated, historically rooted factors that color--often in deeply subconscious ways--both patients' and providers' decisions. As such they are often not amenable to the proof format--and blame laying--required by civil rights laws.

Thus, this article urges adoption of a systemic approach to reducing race-based treatment disparities that uses reporting systems and financial incentives to produce structural change. The history of civil rights enforcement in health care shows that strategies that focus on changing systems of care through financial and regulatory incentives can dramatically and successfully change behavior and improve care for minority Americans.

Section I lays the framework for this discussion by cataloguing the recent research documenting the different care provided to racial and ethnic minorities and confirming that these differentials are likely the result of a complicated mix of medical errors and mistakes rather than variations in patient need. Section II is a historical look at the role of slavery and segregation in creating today's health care system and its race-based prejudices, misconceptions and fears.

Section III tells of the extraordinary transformation of America's segregated health care system wrought by the almost simultaneous enactment of Title VI of the Civil Rights Act and Medicare.(6) This story shows how structural and financial incentives can change health care provider behavior--even behavior as deeply rooted and firmly entrenched as racial segregation. Section IV shows the limits of a civil rights enforcement approach that ignores the reality of competing market incentives.

Section V recommends a comprehensive systematic approach to exposing and reducing treatment differentials and to reducing disparities. It proposes regulatory and market-based incentives to reduce racial and ethnic disparities in care.


   There is absolutely no doubt that Mr. North is treated differently than my 
   white, middle-class patients. The echocardiography lab where he had an 
   appointment sent him home because he was ten minutes late, having to stop 
   every block to rest in the walk from his home to the hospital on a 
   particularly windy day. The pharmacy refused to refill his insulin syringes 
   without a written prescription, even though he had been getting them at the 
   same pharmacy for the past two years. I try to help in every way I can. 
   Every time I send him to a new consultant, I call ahead with an 
   introduction. I tell them how smart Mr. North is, how compliant he is with 
   every aspect of his treatment, and how he knows so much about his medical 
   condition and the medications he takes. I hope that my introduction will 
   enable them to see my patient as I see him now, not as I saw him the first 
   time we met. He needs that help in order to get the medical care he 
   requires and deserves.(7) 

Race matters. A plethora of studies and reports document that the patient's race makes a difference in the care received. Race and ethnicity are consistently linked with different and poorer patterns of health access and treatment.(8)

Minority Americans have significantly higher rates of cancer, stroke, heart disease, AIDS, diabetes, and other severe health problems than white Americans.(9) However, even though minority Americans are generally in worse health than white Americans, they have fewer doctor visits, receive less primary care and fewer preventive procedures even when they have the same insurance coverage.(10) Insured Blacks(11) and Hispanics are less likely than whites to have private physicians and are more likely than whites to rely on hospital emergency rooms and outpatient clinics for primary care.(12) As a result, Black, Hispanic and Native Americans are hospitalized more often than whites.(13)

Moreover, health care professionals provide different--and generally less--care to their minority patients. When hospitalized, African-Americans receive fewer surgical interventions, diagnostic tests, medical services, and less optimal interventions than whites--even when their diagnosis, symptoms, and source of payment are the same.(14) The findings for African-Americans are consistent for every service studied: cardiology and cardiac surgery,(15) obstetrics,(16) general medicine,(17) kidney transplants,(18) hip replacements,(19) mammograms,(20) oncology(21) and leg sparing surgery for peripheral vascular disease.(22) All told, African-Americans get only about three-quarters the high technology interventions prescribed for whites.(23) They are more likely to be discharged in an unstable condition and more likely to have longer hospital stays.(24)

Outpatient care is no different. African-American patients are less likely to be prescribed antidepressants for major depression(25) and anti-retroviral therapy for HIV infection.(26) They are also less likely to get adequate treatment for cancer-related pain.(27)

While less is known about access and treatment for other minority Americans,(28) the few available studies confirm that Hispanic and Native Americans suffer from similar treatment disparities. Both Hispanic and Native Americans are significantly less likely than whites to receive cardiac bypass surgery and angioplasty,(29) and Hispanics are less likely to receive other major therapeutic procedures.(30) Hispanics are also less likely to get adequate treatment for cancer-related pain,(31) and are twice as likely as white patients to receive no pain medication when treated in the emergency room for bone fractures.(32)

These race-based treatment differences raise concerns about the quality of medical care for minority Americans. They are not the result of biology, age, gender, clinical condition, severity of disease or insurance status.(33) Contrary to popular belief, the gaps cannot be attributed to insurance status or income: significant differences exist even when these factors are controlled for.(34) Although most studies merely document disparities in the rates of procedures based upon the patient's race and ethnicity, those that examine the actual quality of care provided to patients tend to confirm that minority patients not only receive less care, but poorer quality care.(35)

Thus, race-linked disparities signal some kind of error.(36) Some may be mistakes in judgment--the result of a wrong belief or misapprehension about the disease or patient's race, ethnicity or class. Other disparities may be the result of ignorance, carelessness or oversight. Many are likely the result of poor communication. Some may be transgressions of law. All are colored by America's history of slavery and segregation.

Minority patients do not always trust white caregivers or the medical care system.(37) Caregivers may carry deep-seated, often unconscious stereotypes about patients of other races and ethnic groups.(38) Class differences are likely to accentuate and complicate racial and ethnic differences. Cross cultural and cross-class communication can be difficult not only when the participants speak different languages, but even when they appear to share a tongue.(39) Individual institutions and the health care system retain vestiges of a formerly segregated system that compound the problem. Residential and geographic segregation mean that health care providers do not locate their practices where large numbers of minority patients, particularly poor minority patients, live.(40)

In America, race is not just a skin color, and ethnicity is not just culture. Race and ethnicity are social categories that reflect differential access to power and social resources.(41) Throughout American history, law and custom have relegated minority groups to different--and inferior--treatment. Medical care is no exception.(42) Understanding racial disparities in medical care requires an appreciation of the history of racism, segregation and civil rights in medicine. Today's health care is rooted in the past.


   Only black docs used to come into black communities to take care of blacks. 
   Meharry and Howard docs went back to the communities from which they came. 
   My dad and uncle were GPs. Sometimes they just got paid in staples. My 
   first memory of medical practice was going with dad to deliver a baby in 
   someone's home. He took me to help him stay awake. My sister and I were 
   born at home. The hospital would not accept black patients. We had a 
   birthing room in my house. My brother was born with CP because he was too 
   big and needed to have a C-section. Although my mother was a wife of a 
   physician, she could not be admitted to the hospital. He was born vaginally 
   and had a bleed in his brain and CP because of it in 1956. My uncle went to 
   Leonard, one of the black medical schools that closed. When my dad finished 
   at Meharry, he joined the practice. He would go out to the farms and 
   provide care for the sharecroppers. He worked twelve hours a day, six days 
   a week. The trust that people had for them was great. They grew up in the 
   community. No one ever went to white doctors. They didn't trust them, 
   didn't think they cared, and most felt they couldn't afford them, even if 
   they had accepted them as patients. We had two black pharmacists, two docs, 
   and two dentists, all in the block where my dad practiced. Literally, it 
   was like a community health center before the term was invented. Even 
   though they didn't have the access to hospital care, few kids didn't get 

Any discussion of race, ethnicity, and health care must acknowledge the profound impact of slavery and segregation on American health care. …

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