Los Angeles anesthesiologist Dr. Marilyn Singleton was angry about California's requirement that every continuing medical education course include training on implicit bias — the ways doctors' unconscious attitudes may contribute to racial and ethnic disparities in health care.
Singleton, who is Black and has been in practice for 50 years, finds doctors' advocacy of implicit bias divisive, and says the state cannot legally require her to teach the idea in continuing education classes. She sued the Medical Board of California, asserting her constitutional right not to teach something she didn't believe in.
The way to address health care disparities, she said, is to target low-income people to get better care, rather than “wagging your finger” at white doctors and crying “racism.” “I find it insulting to my colleagues to suggest that they would not be a good doctor if there was a patient of different ethnicities in front of them.”
The lawsuit is part of a national crusade by right-leaning and legal groups against diversity, equity and inclusion, or DEI, initiatives in health care. This resistance is inspired in part by the U.S. Supreme Court's ruling last year banning affirmative action in higher education.
The lawsuit filed in California does not dispute the state's authority to require implicit bias training. He just wonders if the state could require all teachers to discuss implicit bias in their CME courses. However, the outcome of the lawsuit could impact mandatory implicit bias training for all licensed professionals.
Leading the charge is the Pacific Legal Foundation, a Sacramento-based organization that describes itself as “a national public interest law firm that defends Americans from government overreach and abuse.” Among her clients is the activist group Do No Harm, founded in 2022 to fight affirmative action in medicine. The two groups also joined forces to sue the Louisiana Medical Board and the Tennessee Podiatry Board for reserving board seats exclusively for racial minorities.
In their complaint against the Medical Board of California, Singleton and Do No Harm, along with Los Angeles ophthalmologist Dr. Azadeh Khatibi, say the implicit bias training requirements violate the First Amendment rights of doctors who teach continuing medical education courses by requiring them to Discuss how unconscious bias based on race, ethnicity, gender identity, sexual orientation, age, socioeconomic status, or disability can alter treatment.
“The government says doctors should say things, and that's not what our free nation stands for,” said Khatibi, who immigrated to the United States from Iran when he was a child. Unlike Singleton, Khatibi believes implicit bias can inadvertently lead to substandard care. But she said: “In principle, I do not believe in the government’s persuasive rhetoric.”
The lawsuit challenges evidence of implicit bias in health care, saying there is no evidence that efforts to reduce bias are effective. Studies have found that interventions have not yet shown lasting effects.
In December, US District Judge Dale S. Fisher dismissed the lawsuit, but allowed the Pacific Legal 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 found that doctors' biased attitudes unconsciously contribute to disparities in health care. It also found that racial and ethnic disparities in health care outcomes are “remarkably consistent” across a range of diseases and persist even after adjusting for socioeconomic differences, whether patients are insured and other factors that influence care.
The Legislature found that black women are three to four times more likely to die from pregnancy-related causes than white women, are often prescribed less painkillers than white patients with the same complaints, and are referred less frequently for advanced cardiovascular procedures.
She also indicated that women who are treated by female doctors are more likely to survive heart attacks compared to women who are treated by men. The Legislature's Black Caucus this month unveiled a bill that would require implicit bias training for all maternity care providers in the state.
Dr. Khama Ennis, who teaches a class on implicit bias for Massachusetts doctors, sees only the best intentions in her fellow doctors. But we are human beings too,” she said in an interview. “And not recognizing that we are as susceptible to bias as anyone else in any other field is unfair to patients.”
Ines gave an example of her bias in a training session. While preparing to treat a patient in a hospital emergency room, she noticed a tattoo of the Confederate flag on his forearm.
“As a Black woman, I had to have a quick conversation with myself,” she said. “I needed to make sure I gave him the same level of care that I would give anyone else.”
Ennis's class fulfills the requirement of a Massachusetts law that requires doctors to get two hours of implicit bias instruction to obtain or renew their licenses, starting in 2022.
That same year, California began requiring that all accredited continuing medical education courses involving direct patient care include a discussion of implicit bias. The state requires 50 hours of continuing education every two years for doctors to maintain their licenses. Private institutions offer training courses on a range of topics, and doctors generally teach them.
“Teachers may tell students that they do not believe implicit bias leads to health care disparities,” Fisher wrote in her December ruling. But the judge wrote that the state, which licenses doctors, has the right to decide what to include in classes.
Professionals who choose to teach the courses “must communicate the information that the legislature requires medical practitioners to obtain,” the judge wrote. When they do this, they are not speaking for themselves, but for the country.”
Whether they are talking about themselves or the state is a pivotal question. While the First Amendment protects the right of private citizens to free speech, this protection does not extend to government speech. Courts have said that the content of public school curricula, for example, is the speech of the state government, not the speech of teachers, parents, or students.
The Pacific Legal Foundation's amended complaint aims to convince a judge that its clients teach as private citizens with First Amendment rights. Lead attorney Caleb Trotter said that if the judge decides otherwise again, he intends to appeal the decision to the U.S. Court of Appeals for the Ninth Circuit and, if necessary, to the Supreme Court.
“This is not government rhetoric at all,” he added. “It is private speech, and the First Amendment should apply.”
“Plaintiffs are clearly wrong,” attorneys for Rob Bonta, the state’s attorney general, responded in court papers. “There can be no dispute that the state shapes or controls the content of continuing medical education courses.”
The Medical Council declined to comment on the pending lawsuit.
From 2019 through July 2022, in addition to California and Massachusetts, four states enacted legislation requiring health care providers to be trained in implicit bias.
A landmark 2003 Institute of Medicine report, “Unequal Treatment,” found that limited access to care and other socioeconomic differences explain only part of racial and ethnic disparities in treatment outcomes. The expert panel concluded that doctors' biases could also contribute.
In the two decades since the report's release, studies have documented that bias does impact clinical care and contribute to racial disparities, a 2022 report said.
But the report found that implicit bias training may have no effect and may exacerbate discriminatory care.
“There is no real evidence that it works,” Khatibi said. “For me, addressing health care disparities is really important because lives are at risk. The question is how do you want to achieve those goals?”
KFF Health News, formerly known as Kaiser Health News, is a national newsroom that produces in-depth journalism on health issues.
