Q: Our ob-gyn group has a diabetic patient whom we have seen through two difficult pregnancies and who wants to stay with us for her current pregnancy. She has recently become very religious and now refuses to be treated by a man because she says that it is immodest but the doctor best qualified to manage her care is the same one who saw her before. He is fellowship-trained and is our go-to guy for such cases but she is demanding to be re-assigned. She says that she will sign a form stating her refusal despite being informed of our preference. If we terminate her she could retaliate by suing us for discrimination but if we don’t have her seen by the best doctor for her and there is a problem we are sure to be sued. What are our actual obligations?
A: A competent patient can refuse care if they have been informed of the risks and benefits of doing so. However, the practitioner still has an independent fiduciary duty to not go below a standard of care that they believe is acceptable, so let’s move on to what your obligations would be if you decide to keep her in your practice.
The legal standard for religious issues is “reasonable accommodation” and that is what a court or a medical board would look at. Of course, interfering with the practice of medicine by trying to tell the doctor that they cannot do what they deem medically necessary never comes under “reasonable accommodation” but that is not the case here. This patient is willing to have all needed diagnoses and treatment – her concern is who will be doing it.
The next step for you is therefore to look at what your obligations can be in this regard.
As an example of what not to do, consider a case in which intransigence led to a successful lawsuit. A hospital in New Jersey was successfully sued because it left a Muslim woman untreated in the ER rather than even trying to get a female EKG tech when one was requested. A plaintiff in such a case does not have to prove that there was an intention to discriminate – they just have to prove that they could have been reasonably accommodated but were not. In other words, it is not a breach of care or an ethical lapse or a statutory violation to not have staff that is perfectly pleasing to every patient, but if there can be a practical alternative that will not significantly inconvenience the practice it should try to reasonably accommodate the patient.
If you keep her on, you are not required to bring in a female specialist in high risk pregnancies but you are required to try to reasonably bridge the current gap if you can. For example, can the male doctor serve as a consultant to the female doctor who will take over her primary obstetrics care? Another reasonable accommodation would be to allow her to bring a chaperone of her choice into the exam room when she is with the male doctor. You can offer these and suggest that she bring them to her religious leader for their permission to go ahead.
If she still turns you down then that will be her choice and you will have to decide if the practice can safely treat her without the input of the specialist.
If not, you can then terminate her from the practice because you will have clearly (as you will also have documented) tried to meet her needs without compromising her care. In that setting a lawsuit claiming discrimination would not go far.