Abstract

Excerpted From: Aaron Pinkett, Challenging Race-based Health Care Discrimination: A New Private Right of Action, 119 Northwestern University Law Review 1667 (2025) (245 Footnotes) (Full Document)

Sixteen miles. A twenty-eight-minute drive. That was the time and distance from Newton-Wellesley Hospital to Larry Pinkett's home in Marlborough, Massachusetts. He knew the drive so well that he could practically do it in his sleep--he had been making the drive every single day, sometimes twice a day, for the past several months. But on April 28, 1997, Larry made the drive for the last time, feeling broken and alone as he contemplated how to tell his two young sons their mother had died earlier that morning.

In late 1996, Barbara Bunkley Pinkett, a thirty-nine-year-old Black woman living in a suburb outside of Boston, started to feel sick. She experienced pain, swelling of the breast, and dry, flaking skin around her nipple, among other symptoms. She decided to go to Newton-Wellesley Hospital near her home in Marlborough. Newton-Wellesley Hospital is a community teaching medical center in Newton, Massachusetts. Newton-Wellesley is a full system member of the Mass General Brigham health system, which is a nonprofit, integrated health care system known as one of the nation's leaders in medical research, teaching, and patient care. Newton-Wellesley is also affiliated with the Harvard Medical School and Tufts University School of Medicine. Barbara and her family truly believed that she would receive the kind of first-class care expected from such a prestigious facility. However, despite displaying numerous telltale signs of breast cancer, she was misdiagnosed. Sent away. Her condition continued to deteriorate, and by the time she received a proper diagnosis, it was too late. She died on April 28, 1997.

Barbara Pinkett was born in Brooklyn, New York and graduated cum laude from Boston University in 1978. She received a Master of Business Administration (MBA) degree from the University of North Carolina in 1980. At the time of her death, she worked as an advertising consultant and previously had served as the director of marketing services for an advertising agency. She was an active member of the Greater Boston YMCA Black Achievers, the National Black MBA Association, the Wesley United Methodist Church in Framingham, Massachusetts, and the Delta Sigma Theta Sorority. She and her husband, also an MBA, owned their home in one of the wealthiest counties in Massachusetts. Yet in the end, none of Barbara's accomplishments nor the wealth and community connections she built mattered. That is because in the United States today, people of color-- especially Black women (of any socioeconomic class)--are consistently misdiagnosed, undertreated, and discredited when seeking medical care. Race-based mistreatment occurs regardless of the patient's education, professional accomplishments, or socioeconomic status. This issue, one as old as America, has only recently started to gather attention as famous Black people have spoken out about their experiences seeking health care in the United States. And though the public outcry began with the rich and famous, every person of color in the United States suffers from this epidemic.

In the United States, people of color experience disparities in access to health care, the quality of health care received, and health outcomes. These lead to significant racial disparities in innumerable health care statistics, including but not limited to rates of maternal mortality, pain treatment, cardiovascular disease, and cancer treatment. According to the Centers for Disease Control and Prevention (CDC), in 2021, the maternal mortality rate was 2.6 times higher for non-Hispanic Black women than the rate for non-Hispanic white women. Despite a lower incidence among Black women, the age-adjusted mortality rate due to breast cancer “is about 40% higher among Black women than among non-Hispanic White women.” Another study found Black and Hispanic children with autism experience delays in diagnosis. And in a study of pediatric pain management for appendicitis, researchers found that “Black children are less likely to receive any pain medication for moderate pain and less likely to receive opioids for severe pain.”

In 2003, the United States National Academy of Medicine published Unequal Treatment. This study highlighted that differences in health care access, disease severity, or socioeconomic status do not explain these pervasive racial disparities and many others. But public health, medical, and legal research have shown that racism and implicit bias by medical providers partially account for them.

Bias by medical providers is a serious issue, but rather than combating it, medical schools and residency programs seem to perpetuate practitioners' biases. Data suggests that 50%-75% of white Americans believe that minorities--particularly Black people--are “less intelligent, more prone to violence, and prefer to live off of welfare,” as compared to white people. Unfortunately, medical students and residents are not immune to this prejudice. They continue to believe lies about physiological differences between white people and minorities, particularly about Black people, and it affects their medical decision-making. A 2016 survey found that half of a group of 222 white medical students and residents endorsed at least one myth about physiological differences between Black and white people, including that Black people had less sensitive nerve endings. A third of those providers also believed that Black skin is thicker than white skin. Other research has shown that most health care providers appear to have implicit bias that manifests in positive attitudes towards white patients and negative attitudes toward patients of color. This bias directly affects patient-provider interactions, treatment decisions, treatment adherence, and patient health outcomes. Specifically, providers spend less time with patients of color, are less likely to believe these patients' self-reported pain, and are less likely to prescribe pain medication to patients of color; patients of color also experience worse psychosocial health outcomes.

Medical malpractice claims often offer the only available legal relief for such race-based health care discrimination. However, many malpractice laws cap monetary damages, and several jurisdictions mandate arbitration, mediation, or pretrial screening. Monetary caps on damages vary significantly from state to state. Forced arbitration agreements bar individuals from vindicating their civil rights in court and help organizations evade public accountability. Additionally, medical malpractice plaintiffs that do make it to trial often have limited or no access to juries. Other similar restrictions make it increasingly difficult for the victims of negligent medical care to access justice through our legal system. And that “justice” only addresses the malpractice, neglecting the systemic issues of implicit bias and racism in health care providers that cause people of color to experience differential treatment, outcomes, or both. Patients of color have been repeatedly misdiagnosed, mistreated, and killed by inadequately trained health care professionals, yet medical malpractice litigation fails to provide patients of color with a clear pathway to systemic change. The inadequacy of medical malpractice necessitates a different solution.

Plaintiffs do have a powerful tool that should ensure nondiscriminatory health care provision, at least theoretically. In 2010, Congress passed the Patient Protection and Affordable Care Act (ACA). Section 1557 of the ACA “prohibits discrimination on the basis of race, color, national origin, sex, age, or disability” in health programs and activities receiving federal financial assistance or those administered by an executive agency (or any entity established under Title I of the ACA). This statutory provision is supposed to ensure that provision of health care is provided in a nondiscriminatory manner. As of now, the limited amount of litigation that has been brought under section 1557 has related to gender-affirming care.

Yet section 1557 can and should serve a much broader purpose. Section 1557 adopts the enforcement mechanisms available under Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and the Rehabilitation Act of 1973. To ensure adherence to these enforcement mechanisms, section 1557 confers discretionary authority to promulgate implementing regulations on the Secretary of Health and Human Services. During the Trump Administration, the Center for Medicare and Medicaid Services (CMS) issued revised regulations concerning regulatory protections from discrimination. These regulations significantly narrowed the protections of the rule issued by the Obama Administration in 2016.

In May 2024, the Biden Administration issued its own final rule regarding section 1557. The 2024 rule requires covered entities to have policies and procedures to support compliance with section 1557, prevent discrimination in the use of clinical algorithms in health care decision-making, and to comply with the provisions applicable to Title VI, which range from termination of federal financial assistance for noncompliance to administrative enforcement actions for discrimination based on race, color, national origin, sex, and disability. But this new rule seems slow to take effect and largely unproductive.

This Note argues that, given the barriers to federal government interventions, private-party litigation may be the most effective way to address continuing discrimination and disparate health outcomes. Section 1557 of the ACA does not provide an express right of action under which private parties can bring suit. But the legislative history of the ACA, the congressional intent behind the statute, the Biden Administration's final rule, and recent case law all suggest that section 1557 carries an implied right of action.

Though section 1557's enforcement is based on Title VI of the Civil Rights Act of 1964, it is also based on Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and the Rehabilitation Act of 1973. The Supreme Court has found that each of these statutes offers a private right of action. And although the Supreme Court has not ruled on any cases involving a private right of action under a disparate impact theory, other federal courts have.

This Note proceeds in three Parts. First, it demonstrates that structural and systemic racism directly contribute to racial disparities in various health care treatments and outcomes. Second, this Note explores how the Supreme Court's current Title VI jurisprudence has wrongfully prohibited private individuals from challenging policies and practices that disparately impact people of color. Finally, it proposes a litigation strategy that highlights the key components of section 1557, identifies potential plaintiffs and defendants, reviews how section 1557 creates a path forward to litigate this issue, and points out barriers to litigation. Ultimately, this Note argues that section 1557 of the ACA provides more comprehensive relief and a more viable pathway for civil rights plaintiffs to challenge racial discrimination in health care and promote systemic change.

[. . .]

Racial disparities in health care treatment and outcomes are well documented across public health, medical, and legal research. These disparities are not accounted for by differences in health care access, disease severity, nor socioeconomic status. Rather, public health, medical, and legal research have shown that racism and implicit bias in medical providers at least partially account for this disparity. Structural racism in the United States contributes significantly to these differences in outcomes and treatments. Congress designed section 1557 of the ACA to prohibit discrimination in covered health programs that receive federal financial assistance. Although the statute has not yet been used to combat racial discrimination, this use aligns with the statute's legislative intent. Supreme Court jurisprudence originally permitted implicit private rights of action, but the ruling in Sandoval limited the implied private right of action while favoring those expressly provided for in the statutory text. However, Justice Scalia did acknowledge that private individuals can sue to enforce section 601 of Title VI for intentional discrimination and that congressional intent can create an implied right. Significant medical and public health research suggests that a failure to account for implicit bias and structural racism in the delivery of health care creates outcomes akin to intentional discrimination.

The HHS OCR has authority to investigate racial discrimination complaints under section 1557 and bring enforcement actions, but the likelihood that they will do so during the second Trump Administration is practically zero. President Trump has made it abundantly clear that he wants to eradicate programs and policies that address racial inequities in American life. During his second term, President Trump has already put a freeze on civil rights litigation and begun slashing the HHS workforce under the guise of improved government efficiency. Yet it is clear that these actions--along with his attempts to weaponize civil rights laws; whitewash our nation's history; and destroy DEI efforts just further efforts to reverse gains in civil rights and racial justice in America. This new Administration does not care about the rule of law or racial equity, so they will not prioritize or even acknowledge the issue of racial discrimination in health care spaces. As such, it will fall on individuals to raise section 1557 claims. And although the current Court bars disparate impact claims, individuals who have been discriminated against on the basis of race in health spaces can and should seek relief under section 1557.

J.D. Candidate, 2025, Northwestern Pritzker School of Law; M.P.H., 2019, Boston University School of Public Health; B.S., 2014, Pennsylvania State University.