Doctors Sue California Over Implicit Bias Training

Two California doctors and a nonprofit filed a lawsuit against top officials of the Medical Board of California (MBC) Tuesday to block a state requirement that implicit bias training be included within continuing medical education (CME) course work required for license renewal every 2 years.

The complaint, filed in the U.S. District Court in the Central District of California, seeks a permanent injunction to stop the board from implementing legislation that took effect 17 months ago.

The physician plaintiffs, ophthalmologist Azadeh Khatibi, MD, and anesthesiologist Marilyn M. Singleton, MD, both of Los Angeles, organize and teach CME courses, and claim that the state’s law violates their First Amendment right to free speech, since the plaintiffs don’t believe there is proven value in teaching physicians about implicit bias, or that classes for doctors will reduce health disparities.

According to the lawsuit, implicit bias must now be taught within the up to 50 hours of biennial CME courses. The law defines the topic as “the attitudes or internalized stereotypes that affect our perceptions, actions, and decisions in an unconscious manner, exists, and often contributes to unequal treatment of people based on race, ethnicity, gender identity, sexual orientation, age, disability, and other characteristics.”

The California Board of Registered Nursing and the California Physician Assistant Board are also required by the law to adopt regulations for implicit bias training for their licensees’ CME. In addition, the law requires associations that accredit these courses to develop standards for how implicit bias must be taught to clinicians.

Also listed as a plaintiff is Do No Harm, a Virginia-based nonprofit organization that has opposed diversity initiatives in medicine and reportedly has produced model legislation to ban gender-affirming care used in at least three states. It was started last year by its chairman, Stanley Goldfarb, MD, a retired University of Pennsylvania nephrology specialist.

Do No Harm’s website says it is a group of healthcare professionals, patients, and policymakers who are on a mission to “protect healthcare from a radical, divisive, and discriminatory ideology.” According to Goldfarb, the group seeks to “combat so-called woke-ism in healthcare.”

The group has filed a number of lawsuits or complaints targeting policies they allege discriminate against white people, including a minority scholarship program in Arkansas, Project Hope and its journal Health Affairs for excluding whites from a fellowship, and the Biden administration for “injecting a race ideology into medical regulations.”

Singleton, who is Black, is listed as a visiting fellow on Do No Harm’s website. She has written about her opposition to implicit bias training in The Washington Post. She said in an interview with MedPage Today that she doesn’t believe implicit bias training will enlighten any physicians who harbor biases to change their ways. Moreover, she added, it will waste valuable teaching time and will be divisive.

She noted that she will not discuss implicit bias in the CME courses she teaches, in part because it’s not relevant to her topics.

“Imagine I’m talking about muscle relaxants, pancuronium versus rocuronium. Where does implicit bias fit in there?” she said. “I am certainly not naive. I grew up in a Black neighborhood and have been Black all my life. And I have not had any of my complaints as a patient or my advice as a doctor discounted because of my race.”

“I’m sure there are outliers,” she continued. “But the problem with doing something for the masses is you insult the masses just to get to the outliers. And guess what? We all know the outliers aren’t going to change. Taking some dippy course is not going to change a hardened racist.”

If a doctor “signs up to take a course on race relations in medicine, then discussing implicit bias is appropriate. But they’re talking about infusing it into every [CME] course, and that’s the difference,” she added.

As for Khatibi, she said she grew up in Tehran during the Iranian Revolution of 1979, but later moved with her family to Los Angeles “as a result of increasingly theocratic changes to Iranian society following the Revolution.”

In the lawsuit, Khatibi said she wants to continue teaching CME to California doctors, “but does not want to be compelled to include discussion of implicit bias in her courses when there is no relevance to her topics, or discussion of other topics is more relevant to minimize treatment outcome disparities.”

Both plaintiffs contend there is little evidence that implicit bias training works.

“Implicit bias came up several years ago when there were tests for it involving flashing pictures of people of various races in front of peoples’ faces,” Singleton said. “Then someone at Harvard decided that attributing good, bad, or whatever to different colored faces meant there was implicit bias. Since then, the concept has been debunked.”

Nevertheless, the law’s language spells out a number of harms from clinicians’ implicit bias as the rationale for the legislation, including:

• “African American women are three to four times more likely than white women to die from pregnancy-related causes nationwide” and “often are prescribed less pain medication than white patients who present the same complaints, and African American patients with signs of heart problems are not referred for advanced cardiovascular procedures as often as white patients with the same symptoms.”
• “Women are less likely to survive a heart attack when they are treated by a male physician and surgeon. LGBTQ and gender-non-conforming patients are less likely to seek timely medical care because they experience disrespect and discrimination from healthcare staff, with one out of five transgender patients nationwide reporting that they were outright denied medical care due to bias.”
• “Racial and ethnic disparities remain even after adjusting for socioeconomic differences, insurance status, and other factors influencing access to healthcare.”

The law does not provide references for those claims, but an Assembly floor analysis referenced several supporting documents, including an American Journal of Public Health review that concluded that “most healthcare providers appear to have implicit bias in terms of positive attitudes toward whites and negative attitudes toward people of color.”

It is not known how many other states mandate implicit bias training in CME as a condition of relicensure, as is the case in California, but Michigan also has a requirement. In addition, several healthcare institutions have started requiring such training as a condition of employment, and that has inspired some backlash.

The Federation of State Medical Boards has also begun to tackle the issue with a task force.

The three plaintiffs are represented by the Pacific Legal Foundation, a law firm that supports conservative or libertarian causes.

Khatibi is also a plaintiff in another lawsuit — one of several — against the MBC that attempts to block California’s disinformation law, which would bar physicians from giving patients they are treating false information about COVID-19 that is “contradicted by contemporary scientific consensus contrary to the standard of care.”

Alexandria Schembra, an associate governmental program analyst for the MBC, declined to comment on the latest lawsuit due to pending litigation.

The California law does not mention whether the Osteopathic Medical Board of California, which licenses more than 10,000 osteopathic physicians, must include implicit bias training among its required CME courses.

It is also unclear whether new CME requirements will mandate a specific amount of time spent on implicit bias training, or specific materials in the courses.

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