February 23, 2013

Health care's 'open secret' exposed

The practice of letting patients refuse treatment based on race persists despite legal questions.

By JEFF KAROUB The Associated Press

DETROIT - It's been called one of medicine's "open secrets" -- allowing patients to refuse treatment by a doctor or nurse of another race.

click image to enlarge

Cecilia Rutherford joins a group of protesters outside Hurley Medical Center in Flint, Mich., after a nurse filed a complaint against the hospital claiming it had agreed to a man’s request that no African-American nurses care for his newborn.

The Associated Press

In the latest example, a white man with a swastika tattoo insisted that black nurses not be allowed to touch his newborn. That led several black nurses to sue the Michigan hospital, claiming it bowed to his illegal demands, and a rapid settlement in one of their lawsuits.

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 request would be preferable to forcing on them a caregiver whose mere presence might aggravate the situation, she said.

Tonya Battle, a 25-year nurse at Flint's Hurley Medical Center, filed the first lawsuit last month 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, which was recently joined by three other nurses, was settled this week. Hospital officials said in a statement Friday that the incident was "triggered by conduct which is not consistent with Hurley's policies" and that it "fundamentally opposes racial discrimination."

No details about the settlement were released.

Earlier this week, Hurley President Melany Gavulic denied Battle's claim, saying the father was told that his request could not be granted. Gavulic said the swastika tattoo "created anger and outrage in our staff," and supervisors raised safety concerns.

Multiple email and phone messages left for Battle through her attorney were unreturned, and a listed number for her had been disconnected. 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 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.

Attorney Tom Pabst, who is representing nurse Carlotta Armstrong in a second lawsuit that wasn't part of the settlement, said the hospital's actions left nurses in the neonatal intensive care unit "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.

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