Litigators commonly pursue certain claims for addressing racial disparities in maternal outcomes including section 1981 claims, disparate-treatment claims under the Civil Rights Act and state statutes, as well as Emergency Medical Treatment and Labor Act (EMTALA). Williams v. Women's Healthcare of Dothan, No. 09-CV-873-WKW, 2011 WL 5828218, at *2 (M.D. Ala. Nov. 18, 2011); Brenord v. Cath. Med. Ctr. of Brooklyn and Queens, 133 F. Supp. 2d 179, 191 (E.D.N.Y. 2001) (holding that although it would violate EMTALA if the hospital discriminated against patients because of their race, here the plaintiff noting that she is Haitian with “limited proficiency in English” is merely descriptive and “not evidence that the hospital acted with an improper motive”).
Disparate-treatment claims are typically characterized by a burden-shifting framework. McCullum v. Silver Cross Hosp., No. 99-C-4327, 2001 WL 1516731, at *2 (N.D. Ill. Nov. 28, 2001). To prevail, the plaintiff must show evidence of discrimination. In response, the hospital may provide a nondiscriminatory reason for the treatment, which shifts the burden back to the plaintiff to show that the hospital’s reason is a pretext for discrimination.
This framework presents significant obstacles for plaintiffs, and particularly patients, attempting to prove disparate treatment. For example, Black patients observing white patients receiving more prompt treatment may fail to shift the burden to the hospital. In McCullum, the court found that a pregnant African American plaintiff who waited three hours in the ER for treatment, despite a full-term, non-Black patient being admitted immediately, was insufficient to shift the burden to the hospital. Id. at 3 (plaintiff brought claims under both EMTALA and 42 U.S.C. § 1981). The court further noted that even if the burden was shifted, the hospital offered a sufficient, nondiscriminatory reason for the different wait times given that the non-Black patient was full-term.
This epitomizes the inherent tension in these cases where plaintiffs must show more than conclusory allegations, but often have difficulty obtaining sufficient proof early in litigation. While this is true of virtually any lawsuit, this presents extraordinary challenges for patients alleging disparate treatment. Even if a patient of color observes white patients receiving enhanced or expedited care, because of the complexity and uniqueness of each patient, it is difficult for a patient of color to know, let alone prove, that treatment was denied or delayed because of their race or whether differences in medical conditions justified expedited care for another patient.
If a plaintiff manages to shift the burden, the hospital may counter with a legitimate nondiscriminatory reason and shift the burden back to the patient. This presents another challenge for patients because it is often difficult to untangle the myriad of factors producing the negative outcome. For instance, some attribute disparities in maternal outcomes to prior health issues or the fact that hospitals that serve a higher percentage of Black patients tend to have higher rates of pregnancy complications for both white and Black women. Annie Waldman, “Lost Mothers: How Hospitals are Failing Black Mothers,” ProPublica (Dec. 27, 2017) (“women who hemorrhage at disproportionately black-serving hospitals are far more likely to wind up with severe complications . . . When we looked at data for only the most healthy women, and for white women at black-serving hospitals, the pattern persisted”). Although this is disgraceful, this arguably isn’t discriminatory.
While differences in health and facilities explain some of the racial disparities, they fail to explain all the differences. For example, white women who forgo prenatal care, or begin prenatal care late, have better maternal outcomes than Black women who initiate prenatal care in the first trimester. White, Hispanic, and Asian mothers residing in the poorest neighborhoods still have better maternal outcomes than Black women in the wealthiest neighborhoods. Waldman, “Lost Mothers,” supra.
There is also growing evidence that facially neutral policies, such as some hospital triage protocols, may negatively impact people of color. But despite the probable shift from intentional discrimination to these more implicit, unintentional forms of discrimination, to pursue a case under the Civil Rights Act or even under some state statutes, plaintiffs are limited to disparate-treatment claims. Harris v. Cap. Growth Inv. XIV, 52 Cal.3d 1142, 1175 (Sup. Ct. 1991) (Unruh Act does not permit disparate impact claims because the act explicitly refers to intentional discrimination); Alexander v. Sandoval, 532 U.S. 275, 293 (2001) (held that there is no private right of action for disparate impact claims). Regarding Title VI of the Civil Rights Act, which prohibits “recipients of federal funds from discriminating on the basis of race,” the Supreme Court held that there is no private right of action to enforce disparate-impact regulations. See Alexander, 532 U.S. at 293.
If a plaintiff manages to successfully overcome these hurdles, it’s important to evaluate appropriate forms of relief. Injunctions, in theory, ensure that hospitals implement appropriate changes to combat discrimination. But researchers found that many hospitals struggled financially to implement reforms obtained through settlements. It is also challenging to balance the competing needs of the plaintiff versus the community. Although it is important to provide compensation to patients who were discriminated against, many minority-serving providers already struggle financially and lack crucial resources. Therefore, settlements in which the hospital pays “damages to one minority patient may reduce the quality of care for other minority patients at the facility.”
Thus, these legal routes present several challenges, and the remedies may fail to address the underlying problems.
The Path Forward
A multidisciplinary approach that recognizes and corrects shortfalls in federal, state, and hospital policies is the best approach moving forward. The most crucial step is first recognizing that these racial disparities exist. For example, the Preventing Maternal Deaths Act, which provides funding for committees to evaluate maternal deaths, does not address race. Khiara M. Bridges, Racial Disparities in Maternal Outcomes, 95 N.Y.U. L. REV. 1229, 1296 (2020). Additionally, although almost all states have committees that investigate maternal mortality, the membership of these committees and what they investigate and formally report varies significantly. An in-depth review of these state committees showed that many “emphasized lifestyle choice and societal ills” rather than examining disparities in medical care. Moreover, “among 10 states with the highest death rates, just four panels reported on flaws in medical care.” Regarding explicitly addressing race, officials are only required in nine states, as well as D.C. and N.Y.C., to investigate racial disparities when reviewing maternal deaths.
Policymakers are beginning to identify and correct these oversights. In contrast to the Preventing Maternal Deaths Act, which didn’t address race, the recently released White House Blueprint for Addressing the Maternal Health Crisis is multifaceted. The proposal includes tackling racial discrimination by encouraging implicit-bias training for providers, and addresses the underlying disparities in health and facilities by proposing to extend Medicaid coverage for one year postpartum and investing more in rural health facilities. Id. at 9. Given the wide variability in outcomes across hospitals, the administration is also proposing a “Birthing-Friendly” quality designation from the Centers for Medicare & Medicaid Services that would be awarded to hospitals that participate in quality initiatives and adopt safety practices to improve perinatal care. Id. at 10.
States should also take action to prepare for a post-Dobbs world and examine how other states successfully reduced their maternal-mortality rates. For example, California cut its maternal-mortality rate in half by establishing the California Maternal Quality Care Collaborative, which reviewed data on maternal deaths, and began promoting hemorrhage drills and assembling hemorrhage carts containing the necessary equipment for handling these medical emergencies.
Ultimately it is more important than ever for policymakers at the state and federal level, lawyers, and hospital administrators to work together to reduce these racial disparities.