Recently, two doctors filed a lawsuit in California, challenging the implementation of Assembly Bill 241, which requires all continuing medical education (CME) courses in California to include discussion of implicit bias, as of January 1, 2022. Plaintiffs Azadeh Khatibi and Marilyn Singleton, as well as at least one member of Plaintiff Do No Harm, do not want to be compelled to include implicit bias discussions in the CME courses they teach.
Khatibi and Singleton note in their complaint that “the efficacy of implicit bias training in reducing disparities and negative outcomes in healthcare is controversial…and lacks evidence.” They further note that “[e]ven assuming sufficient evidence exists that implicit bias in healthcare is prevalent and results in disparate treatment outcomes, there is not evidence-based consensus that trainings intended to reduce implicit bias are effective,” but that “evidence shows that implicit bias trainings can cause counterproductive anger, frustration, and resentment among those taking the trainings.” Therefore, they prefer to “teach different, evidence-based subjects.”
To satisfy the implicit bias requirement, CME courses must include “[e]xamples of how implicit bias affects perceptions and treatment decisions of physicians and surgeons, leading to disparities in health outcomes,” or [s]trategies to address how unintended biases in decision making may contribute to health care disparities by shaping behavior and producing differences in medical treatment along lines of race, ethnicity, gender identity, sexual orientation, age, socioeconomic status, or other characteristics,” or a combination of both.
The plaintiffs go on to note that the United States Constitution prohibits the government from “compel[ling] speakers to engage in discussions on subjects they prefer to remain silent about.” They argue that the law is a “content-based restriction on Plaintiffs’ and their members’ freedom of speech because it mandates the discussion of a certain topic (implicit bias) in continuing medical education courses taught by them” and it is also a “viewpoint-based restriction on Plaintiffs’ and their members’ freedom of speech because it mandates speech accepting the premise of implicit bias and resulting healthcare disparities due to such bias, despite the controversial nature of both propositions.” They also argue that the law “is not sufficiently tailored to serve a compelling government interest.”
The Plaintiffs are seeking an injunction, preventing the law from going into effect, arguing that they have “no adequate remedy at law to compensate for the loss of their freedom of speech and will suffer irreparable injury absent an injunction” prohibiting the requirement that CME courses in California include a discussion of implicit bias.
Plaintiff and Lawyer Statements
One of the plaintiffs, Dr. Khatibi, immigrated with her family from Iran around the time of the Revolution in the 1970s. While she may find the law to be “well-meaning,” she also believes it is “completely unconstitutional.” Dr. Khatibi’s concerns around the California law in part stem from reminders of what happened in Iran, noting, “At that point, [the Iranian government] had closed the universities down for three years to revise the textbooks and make sure people were learning what was deemed ‘correct’ to learn.” She goes on to say that CME courses have time constraints and by requiring an implicit bias discussion in every CME course, other topics will have to be taken out of the curriculum, saying, “You’re actually changing the narrative of medicine by changing the narrative of medical education by not saying what you would’ve taught because you actually are now forced by law to teach something else. If you carry it back, the trajectory of medical education gets changed because the person is talking about X instead of talking about Y, and it would’ve benefited society if you actually talked about Y instead of X.”
Dr. Singleton authored an op-ed in the Washington Post about the California law, where she said, “I reject the unscientific accusation that people are defined by their race, not by their individual beliefs and choices. It is little consolation that studies are finding implicit bias training has no effect on its intended targets, and might even make matters worse.” She also takes issue with the message the law sends to not only physicians, but to patients, saying, “Black people are, in effect, being told that White physicians are likely to quite literally damage our health. If that’s the case, why on earth would you seek medical care, unless you could be absolutely certain of not being treated by a White physician? And if you do seek medical care, why wouldn’t you doubt every word from a White doctor who is inherently prejudiced against you?”
“Physicians should base medical care on each patient’s individual situation and condition,” said Caleb Trotter, one of the attorneys who filed the Complaint. “Implicit bias training does the opposite, telling doctors they should be concerned about a patient’s immutable characteristics like race, gender, and sexual orientation, regardless of the characteristics’ relevance to the patient’s treatment.”