One of my favorite law profs sent me a link to a medical student discussion board, where a very long thread started off with this post:
From some personal experience and hearing stories from others, there seems to be a trend where male students are often being asked to leave during a Gyn visit. This seems unfair, especially to those of us interested in ObGyn. At what point do the patient’s wishes get trumped by the need to train students?
What about interns/residents? I just wondered to what extent (if any) this was an issue. I’m already seeing that female students are getting to do a lot more paps, bimanual exams, etc than the male students. As someone interested in ObGyn, this is very discouraging. How the hell am I supposed to learn if I’m standing out in the hall?
I’m on the road, so I’ll use that as my excuse for raising this without doing any analysis, but in truth I have a lot of complicated feelings about the issue that I need to untangle at some point, so even if I had more time I still might punt. In any event, click the link and read the thread if you are interested.
–Ann Bartow
It obviously comes down to the patient’s wishes, right? Patients have a pretty general right to refuse any treatment at all, and I don’t see any reason why they shouldn’t be able to discriminate against care providers based on gender. It might not be the most enlightened approach, but patient autonomy is a pretty sacrosanct right.
This isn’t perfectly analogous, but I know in the legal profession there are clients that will refuse to use a firm unless a certain portion of the staffed lawyers meet diversity requirements. And it’s very common for clients to demand that no junior lawyers be staffed on a deal. Obviously these situations can be distinguished from a female patient refusing care from a male medical student, but they fall under the larger umbrella of clients being able to do whatever the heck they want.
I suppose the facts might change if the patients have previously agreed to accept treatment from a medical student in exchange for a lessened fee, but I really can’t speculate, I am not familiar with the circumstances in which a patient comes under the care of a medical student.
I can see how this would be frustrating as a male medical student, but I also think it’s very disturbing for a future practitioner to be talking about “at what point do the patient’s wishes get trumped” by *anything*. Yes, of course there are types of decisions that an untrained person just can’t make. The patient doesn’t really get to express opinions about the specifics of a surgical procedure, for example, but he does get to hear about the procedure, get the necessary information, and make a decision. When it comes to something like whether a student or resident is in the room, that should *always* be the patient’s decision. No matter what type of medicine, I’ve always been asked if it’s okay to have someone sit in. There is a resident who sees me before the doctor in the endocrinology clinic where I get my annual exam, but I assume that if I asked for a female specifically before making the appointment it wouldn’t be a problem. I happen to have a male doctor and I’m personally comfortable with either, but not everyone is. I know that’s hard for men going into the profession, but many women have experienced sexual violence, abuse, rape, etc. and for better or worse would prefer not to be naked in front of a man they don’t know very well. I doubt that it will make it completely impossible to learn – there must be other women like me.
Both commenters above raise good points. But, what if (and this is not at all hypothetical) a male patient decides he does not wanted to be treated by a female doctor? Or instead of gender a patient raises objections about a doctor based on race or sexual orientation? Same response?
Ann,
Are you asking your question in the objective legal sense, or the normative policy sense? I have to assume the legal answer under settled law is that a private citizen can discriminate in which service vendors they select based on any, however repugnant, grounds.* The question of whether we ought to allow such conduct is more interesting.
I think the fact that we are dealing with medical students seeking education is a bit of a red herring, I don’t think the analysis varies from the general question of whether we should tolerate consumer discrimination in their selection of merchants/service providers. Certainly society has an interest in properly training doctors, but it has a similar interest in ensuring that all citizens have access to the opportunities necessary to reach their professional potential. For that reason, I don’t think the question of whether Kyle Klansman should be able to turn down medical services from medical students of color is any different than whether Kyle should be prohibited from buying goods from a white merchant when a more diverse vendor is available across the mall. When it comes to balancing society’s interest in commercial justice against Kyle’s right to commercial autonomy, I’m just not willing to limit his personal autonomy (with the understanding that libertarianism has traditionally been disadvantageous for non white males) to the extent where all selections of service providers are overseen to ensure that the consumer is not discriminating.
Are doctors any different from other service providers? I’m not sure that they are. And have you thought about what form preventing such discrimination would actually take? I think we would have to prohibit patients from seeking alternate opinions/diagnoses, or at least limit their selection of alternate medical providers to doctors of identical diversity demographics. I wouldn’t want to be friends with Kyle, but I’m not willing to endorse any measures that would stop him from discriminating in his choice of service providers, whether it be who cuts his hair, or who removes his tonsils.
*It’s been a while since conlaw, but I wonder if an argument could be made on behalf of the discriminated against medical student (assuming we’re dealing with a government run hospital) that the hospital is participating in unconstitutional discrimination. It’s a stretch, but I’m thinking of an analogy between the hospital participating in the patient’s discrimination, and a court participating in discrimination pursuant to racist deed covenants.
You have take taken the issue in a lot of broad directions that I am not going to respond to, because I see the issue very differently.
Some people go to teaching hospitals because they believe they will get better care; others because they can get care there despite being uninsured or “under insured” (which can mean many things). Part of being a patient at a teaching hospital is facilitating the education of medical students. This should be done in a way that is courteous and respectful of patients, but whether courtesy and respect means the patient gets to rule out doctors in training based on their race or gender or sexual orientation or religion or the like is to me a hard question.
And what about the mirror image situation? Should a doctor be free to refuse to treat a patient who is an overt and contentious bigot? Even if she was the only doctor available? Or working at the only hospital in the area that treats people with the patient’s condition? Like lawyers, doctors probably shouldn’t treat patients who repulse them, but also as with lawyers, sometimes isn’t that unavoidable? I’m posing these questions because I think they are thought provoking, not because I expect answers.
Wow, that thread is full of fail. The guy implying that non-English speakers, the poor, Hispanic women and women whose children have multiple fathers DON’T GET TO REFUSE CONSENT is a particular winner.
But I think the “best” bit is this part: “By the way, a man is not backwards because he doesn’t want another man inside his wife’s vagina. Some husbands have managed to talk their wives into switching to a female gyn.”
Um … no, that’s practically the *definition* of backwards, Janice.
Returning to this thread a little late to the game, Ann, so I’ll just briefly respond to your query. It’s an interesting question, because where on the one hand I think a patient has a right to make his or her own decisions as I said above, on the other hand it makes me very uncomfortable to imagine a white patient refusing to be examined by a black doctor, or a straight patient with a gay doctor, etc. But as uncomfortable as it makes me, I think I would probably say the same – though in such a case I might be tempted to suggest that a doctor or facility that had a problem with this response let the patient know that they can be seen elsewhere and offer a referral. At the same time there are all kind of issues that people might not know about – for example, I don’t consider myself racist beyond the internal racism that we all struggle with, and yet as a teenager I was in a situation that made me deeply fearful of black men for a time. Though the fear was irrational, the basis for it was real and I think if I explained myself to a doctor at that time that I was going to have a serious fear response if forced to be naked in a room with a black man touching me, they would probably understand. Anyway, some interesting thoughts to ponder. (And okay, that wasn’t so brief after all!)