Private Law Theory

ABSTRACT
Inequities in the distribution of healthcare are widely acknowledged to plague the United States healthcare system. Controversies as to whether anti-discrimination law allows individuals to bring lawsuits with respect to implicit rather than intentional bias render negligence law an important avenue for redressing harms caused by implicit bias in medical care. Yet, as this Article argues, the focus of negligence law on medical standards of care to define the boundaries of healthcare providers’ legal duty of care prevents the law from adequately deterring implicit bias and leaves patients harmed by biased treatment decisions without redress for their losses, so long as those decisions fall within the range of medically accepted practices. I term this the problem of ‘biased-but-reasonable’ decision-making ….

Gilboa, Maytal, Biased but Reasonable: Bias Under the Cover of Standard of Care (August 10, 2022); Georgia Law Review, Forthcoming; Bar Ilan University Faculty of Law Research Paper No 4186764.