National Black Law Journal

In this article, I use a critical race approach and a civil rights of health framework to examine the role of racism in medical treatment, specifically of Black women. Because racism is built into our institutions, widespread in our culture, and influences our beliefs and behavior, it is necessary to recognize and understand its universal presence when determining the most effective method to confront its impact on patient care in the health care setting. The current civil rights doctrine is ineffective in addressing this insidious racism, which is why I propose a doctrinal shift in disparate impact claims and use patient narratives to demonstrate the need for this shift. This new doctrinal framework assumes the existence of bias once a patient has identified disparate impact, shifting the burden to the defendant to prove this impact was not a result of discrimination. This change removes the need for plaintiffs to identify a specific discriminatory policy or practice and acknowledges the pervasiveness of racism and implicit bias in our society.

With these proposed changes, litigants will gain the ability to challenge their experiences of discrimination and provide for relief to empower patients and incite change in healthcare institutions to eliminate the harmful effects of bias.