Race, ethnicity and quality of care: inequalities and incentives.

As was my custom, I moved from one exam room to the next with a fluidity that comes from years of practice, yet I was stopped in my tracks when Mr. North rose to his feet to greet me. His deep ebony, six foot-three-inch frame dwarfed my pale, five-foot-three presence. The tremendous hands on his 260 pound body grabbed my own outstretched right hand and shook it.... I glanced at his face, trying to see through my initial discomfort, only to be greeted by my own face staring back at me from the silver, reflective sunglasses he wore beneath a baseball cap that covered his head and any hair that might have been growing on it. His huge chest was tightly wrapped in a black T-shirt that, even in its largest version, couldn't stretch Comfortably to encompass his pectoral girth. ... Mr. North became one of my favorite patients...I like him because I realize how hard I have had to work all of my life to overcome the racist feelings that made me fear him when we first met and that never allow me to act completely naturally in his presence. 1 Race matters. While Medicaid and Medicare have increased access to care for poor and minority Americans, they have not erased differences in the quality of care received by minorities, particularly poor minorities. Health care institutions and individual caregivers continue to provide different care to their minority patients than they give to those who are white. These treatment differentials have complex origins. Bias, prejudice, class and money all play a role. Nevertheless, differences based on race and ethnicity rather than medical need are medical mistakes.2 This article uses the Institute of Medicine ("IOM") report on quality and safety in health care, To Err Is Human: Building A Safer Health System,3 as a template for thinking about race linked differentials in health care access and treatment. The theme of the IOM report is that efforts to improve quality of care should shift from blaming individuals for past errors to designing better systems to prevent future errors.4 Similarly, attempts to reduce race-based disparities in medical care need to move from a backward looking focus on blame to designing systems that assure patients get medical care based upon their medical need and preferences rather than care that is mis-colored by their race and ethnicity. Civil rights law has provided the legal framework for examining differentials in care for minority and poor people. Typically, civil rights enforcement, like malpractice litigation, focuses on identifying whom or what to blame. In malpractice, a plaintiff must establish the relevant standard of care, prove that the health care provider violated that standard and that the violation caused the patient's injury. In a civil rights case, blame is laid by proving the health care provider either intentionally discriminated or used policies, practices or procedures, that, while not intended to discriminate, have an unjustified, disproportionate adverse impact on minority patients.5 Civil rights litigation, like medical malpractice, can redress some race-based medical errors. However, racial disparities in medical treatment are the result of multiple, complicated, historically rooted factors that color-often in deeply subconscious ways-both patients' and providers' decisions. As such they are often not amenable to the proof format-and blame laying-required by civil rights laws. Thus, this article urges adoption of a systemic approach to reducing race-based treatment disparities that uses reporting systems and financial incentives to produce structural change. The history of civil rights enforcement in health care shows that strategies that focus on changing systems of care through financial and regulatory incentives can dramatically and successfully change behavior and improve care for minority Americans. Section I lays the framework for this discussion by cataloguing the recent research documenting the different care provided to racial and ethnic minorities and confirming that these differentials are likely the result of a complicated mix of medical errors and mistakes rather than variations in patient need. …