Doctor-Patient Sex Discrimination: do patients have the right to discriminate?
I have a friend who is currently completing his third year in medical school. This year and then next requires all students to complete rotations, both in-patient and out-patient. This basically means that the students get to check patients and scrub in on surgical procedures in order to better educate themselves and gain experience. My friend is finishing up an 8 week rotation in OB and gynecology. He has, as all other students in their respective rotations, scrubbed in on numerous surgeries of different kinds. Last week, he was scheduled to scrub in for a common procedure. The resident heading the surgery happened to be female, as did the nurses. My friend, by chance, was the only male to be present for the operation. after scrubbing in for a surgery, the woman receiving the procedure refused for him to be in the operating room, claiming she did not want any males in the room during the operation. He had to leave the room and wait for the procedure to finish before receiving another assignment from his resident.
Patients are notified when students will be in the operating room. They have the right to refuse students to participate in their procedures. Because of the circumstances, the patient was able to throw him out because he was a student. In her eyes however, she did not mind that he was a student, only that he was male. In talking about Title VII during class, I got to thinking about this incident. Although it is not really an employer/employee relationship, has this patient committed sex discrimination? What would she have done had the resident heading the surgery been male; not had the operation or rescheduled? Regardless of their sex, should patients even be allowed to kick students out of the room? It can be detrimental to society to inhibit the learning of medical school students. Just think, if everyone kicked the students out, they would have zero experience or practice before becoming ‘real’ doctors! Would you want someone to operate on you for the very first time? Every doctor performs their first procedure at some point, and it is usually under a resident’s supervision. If patients continue to refuse students to scrub in, this will no longer be the case, leaving society with very inexperienced doctors.
What are your thoughts on the sex discrimination in this case? What about allowing patients to refuse treatment from medical school students?
posted by Marie E. at
10:33 PM
6 Comments:
I think that the patient should be able to kick out the male student. If she doesn't feel comfortable with him being in the room that is her choice. If the head surgeon were a male, I'm sure that this patient would have picked a different doctor. When going into surgery, you as the patient need to be comfortable with who is going to be cutting you up.
I agree with Billy to some degree. I think that many people do want doctors of their same gender because they feel more comfortable talking to them about their health issues. I think if a medical student plans on scrubbing in and watching a surgery, they should talk to the doctor and patient before hand that way they know how the person feels about having a male student watching a surgery if it is a female patient. Going into surgery sometimes can be very traumatic or stressful on a patient, so it might be safe just asking ahead of time might help in allowing those male students to participate in a surgery that they might not have gotten to see otherwise. And isn’t it possible for students to watch in the observation deck? I know it might not be “hands on training” but they are still watching it take place.
I think this is just a cycle. I’m sure many female doctors today had to fight their way into getting into surgeries where their male patients might not have wanted them. I’m sure at times they had some backlash against them because they were female, but look at all the female doctors we have today. They are all experienced in their field. I’m sure if they can do it, male medical students can do it too.
You also have to think about those medical students that are of a different national origin. Think about how hard it would be for them to take part in a surgery, especially if the patients kept saying no. How will they become better doctors? Do you think they would face this in their home country? My guess…probably not.
As a student in the pre-med lane, I have some comment on this issue. While Billy and Ashley's comments are viable in the sense that every patient has a right to privacy and if it is in their best interest to not have a male perform on a female surgery-then so be it. However, at the same time, we must remind ourselves the definition of a doctor. A doctor is defined as a licensed medical practioner. No where in the definition does it have preference over female vs male. There are exceptions to every rule, though, for example, if an individual as a "EVERYDAY" doctor would prefer a male/female due to religious issues, preference, comfortability, etc.. Using this as a framework, while the patient has a choice, I am almost sure if the choice was about his/her life at stake, and for this specific case, the male was the best surgeon; she should/would not have a problem with it.
It is true that the patient has their rights, but the doctor's role in patient confidentiality is also highly stressed. If students do not learn how to perform surgeries, where will the future doctors of this world be placed?
While it may be too simplistic or oversimplified to say, in terms of a life and death situation, which is the goal of the doctor (that is to save a life..), the fact remains that gender should not matter. Those are just my two cents worth.
This is a really excellent question and an excellent discussion. Let me put a more technical legal spin on it. We've been talking about Title VII of the 1964 Civil Rights Act in class. Let's assume that marie e's friend is an employee of the University which he attends (that is true of most medical interns and residents, but I'm not sure about someone in his third year of school).
Marie e describes differential treatment on the basis of sex. One question would be whether this single situation would be sufficient to be an actionable adverse action by the employer, even assuming that it was a sex-based decision. If such refusals to participate, over time, added up to limiting marie e's friend's training and limiting his potential for further employment or promotion, it probably would.
But we've also talked about situations in which facially discriminatory decisions or policies may be justifiable under the BFOQ exception. That's a pretty limited exception, but gynecology and obstetrics is one area where it's had some play. Check out, for instance, the case of Slivka v. Camden-Clark Memorial Hospital, in which a male was not hired for a position as a labor/delivery nurse and the employer tried to argue that being female was a BFOQ for privacy reasons. Though the BFOQ argument didn't carry the day in that case, the court held open the possibility that it could under circumstances with better (or better presented) evidence.
Does any of this change or influence anyone's view of marie e's friend's situation?
In regards to Professor Prenkert's comment, the BFOQ circumstance that comes to mind deals with gynecology in the sense that a medical office could promote itself as an all-female gynecology practice. There actually are a number of medical practices like this one. The selling point would be services to female patients by female doctors. However, in the Slivka case if I remember correctly, patients preferred females but the hospital could not use that in discriminating against him and as a result not hiring him. Since the hospital in the Slivka case was not a medical practice like the one I hypothetically mentioned, there is no BFOQ.
As to the original post, I think of the patient more as a consumer than the employer in the situation. Consumers have the right to choose what characteristics they would like to have in a service and therefore have the right to choose a male or female doctor. I agree that the patient should be comfortable with his or her doctor and therefore can choose on different factors.
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