March 4, 2013 | Posted By Bruce D. White, DO, JD

Consider the following recent news articles. In one sentence, the alleged facts are that a hospital supervisor reassigned a 25-year-veteran neonatal intensive care unit nurse to “[honor] a father's request to not let black nurses treat his infant son.”

Patients and patients’ legally authorized representatives have rights in the provider-patient relationship. A number of states have codified some of these rights in statutes and regulations in ways that look like a “patient’s bill of rights.” Typical within these declarations are statements that give patients many broad choices with respect to care. Some may see this is an extension of a patient’s autonomous choices in healthcare delivery generally.

But do patients really have a legitimate “rights” claim that extends to the selection of specific employed nurses, therapists, physicians, or other professionals within the hospital? True, the patient or surrogate did “select” the hospital, but may the patient or surrogate “select” individual staff? The principle of justice requires that patient choices be reasonable ones without imposing a disproportionate burden on others. The community has established boundaries: patients may select primary care providers from a list provided by the plan, but if the preferred doctor is not accepting new patients then that provider option is not available. Moreover, from a justice point of view, if one patient had the option to select individual staff members, should not all patients have the same “right”?

“Rights” language may not be very helpful here. Drs. David Bruce Ingram and Jennifer A. Parks – in the 2002 book Understanding Ethics – have written:

Rights, then, are demands we impose on others. Furthermore, because demands that cannot be enforced are empty demands, there is the expectation (or at least the hope) implicit in every rights-based demand that others should not only heed the demand but be ready and willing to enforce it [emphasis in original].

Patients and surrogates should recall that in the delivery of healthcare if a “right” typically does exist, it is usually a “negative right,” more specifically “the right to refuse.” For example, in the reported news case under discussion here, perhaps the father had the “right” to refuse the offer of care provided by the nurse, not the right to the care being delivered by one specific individual. Moreover, continuing the notion of a “right to care” for just a moment longer, is it care from a specific person or from a competent professional when provided by the hospital? It doesn’t sound reasonable that it be delivered from an identified individual, all the time – 24 hours a day, seven days a week. This simply is not humanly possible in the extreme.

It seems more logical to expect that the hospital provider will accommodate patient and surrogate reasonable requests when possible. But even then – in order to be fair to all similarly situated patients – there must be reasonable limits or constraints. In some cases, these limitations are set by law.

Consequently, the father's right to refuse examination and treatment for his infant child cannot equate to an obligation on the part of the hospital to provide a staff member of the color, race, national origin, sex, sexual orientation, or religion that he insists upon. The hospital is obligated to provide a competent provider that will offer standard treatment according to good clinical practices. Sometimes it is advisable for employed physicians and nurses to avoid conflict situations by asking to be reassigned other responsibilities. And sometimes supervisors are well advised to work with patients and families and reassign staff when it appears reasonable to do so (occasionally even for safety concerns).

But parents, surrogates, and patients may misinterpret a hospital’s willingness to reasonably accommodate their preferences as an obligation on the provider side of the patient-practitioner relationship to meet their demands. The right to refuse is not the same as the right to demand specific providers or interventions. In a few cases, the patient, surrogate, or parent may need to find a substitute provider on his or her own and the non-accommodating team needs to transfer care if it’s reasonable to do so. Moreover, the team is not obligated to find an acceptable alternative, that too is the responsibility of the patient, surrogate, or parent. Also, as may have been the case here, if the parent’s actions are not in the child's best interests or actions risk injury to the child (medical neglect or abuse), the provider should call child protective services.

If the hospital is concerned about lawsuits from a disgruntled parent, this case shows supervisors may just as easily be worried about a discrimination claim based in federal employment law should they accede to parent demands to shift care from one privileged and competent provider to another for reasons other than quality of care.

The Alden March Bioethics Institute offers a Master of Science in Bioethics, a Doctorate of Professional Studies in Bioethics, and Graduate Certificates in Clinical Ethics and Clinical Ethics Consultation. For more information on AMBI's online graduate programs, please visit our website.

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