Are White Doctors Killing Black Babies? – Lawsuit Possible in DC

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Are White Doctors Killing Black Babies? – Lawsuit Possible in DC; Black Newborns 3 Times More Likely to Die Under White Doctors‘ Care – Study

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New Studies Find That Black Babies Die More If Cared For By White Doctors

WASHINGTON, D.C. (September 28, 2020) -  While it's long been known that Black babies are much more likely to die shortly after birth than White ones  - in some studies by a 2-to-1 ratio -  a new study suggests one startling explanation.

It found that Black babies are nearly three times more likely to die if cared for by White specialists than Black ones - not because Black babies are less healthy, or more prone to various diseases, receive different parental care, or for similar reasons.  It's apparently the care provided by two different types of doctors.

The study, published in the Proceedings of the National Academy of Sciences, was done by scientists at George Mason University, and involved almost 2 million clinic births in Florida, roughly between 1992 and 2015.

This huge and otherwise unexplained disparity in infant death rates between different care overseen by White as compared with Black doctors means that the care provided by the White physicians, on the average, is using the legal "but for" test, the cause of many Black babies deaths, suggests public interest law professor John Banzhaf.

While it may be very difficult if not impossible to prove in individual cases how a White physician was negligent in providing less effective life-saving care to a Black infant than a Black doctor would have provided, it may be possible to sue based upon this evidence alone, at least under the D.C. Human Rights Act, says Banzhaf, who has won dozens of cases under this far reaching statute.

An Unlawful Discriminatory Practice

A key portion of the law permits law suits - and unlimited monetary damages and penalties, including attorneys' fees, litigation costs, and civil penalties - if any pattern or practice - even if it cannot be precisely identified, much less proven - has the effect or consequence of discriminating on the basis of factors such as race.

More precisely, Section § 1-2532 of the act provides that "any practice which has the effect or consequence of violating any of the provisions of this chapter [i.e., a discriminatory effect based upon factors such as race] shall be deemed to be an unlawful discriminatory practice," and therefore actionable.

This means that, if in a large hospital, the death rate for Black babies is significantly higher if they are cared for by White doctors as compared with Black doctors, it might be possible for the family of any one infant who died at the hands of a White doctor to bring a class action on behalf of all others who died under the same circumstances.

While it may sound farfetched to sue on the basis of statistical disparities without proof of individualized causation, that's exactly what Banzhaf suggested regarding cigarette manufacturers.  The result was a massive settlement in which the tobacco companies were forced to pay about one-quarter of a TRILLION dollars to the plaintiffs,  as well as make many changes demanded by the plaintiffs.

Thus Prof Banzhaf, who teaches personal injury law, has been called "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," and an "Entrepreneur of Litigation, [and] a Trial Lawyer's Trial Lawyer."

Following The Care Instructions

Obviously, there may be alternative explanations for this 3-to-1 ratio. It may be that a Black parent may be more likely to follow the care instructions of a Black doctor, that women who select doctors who are Black are somehow different from those who select physicians, etc., but statistics reportedly point to a lower quality of care for Black babies in intensive care units.

The study also found that the most significant drop in deaths occurred in hospitals which deliver more black babies, suggesting institutional factors such as unconscious bias/racism may play a role.

In any event, the Human Right Act does allow a law suit to go forward simply on the basis that the effect or consequence of some system or course of conduct adversely affects one race significantly more than another.

It's shocking that the race of a physician alone can triple the number of black children who die shortly after birth and, like the significantly higher death rate among Black adults as compared with their White counterparts, it should be a call for action - perhaps hard hitting legal action - suggests Banzhaf.