Physicians discriminate against patients all the time. Pediatricians discriminate against the elderly. Ob-gyns discriminate against men. Urologists specializing in male infertility discriminate against women.

But you cannot illegally discriminate against patients.

There are federal and state laws against illegal discrimination. California’s Unruh Act is instructive.

The Unruh Civil Rights Act (California Civil Code Section 51) provides protection from discrimination by all business establishments in California, including housing and public accommodations, because of age, ancestry, color, disability, national origin, race, religion, sex and sexual orientation. 

The Unruh Act permits disparate treatment that is not “arbitrary, invidious or unreasonable.”

Many aesthetic practices limit their treatment based on certain patients they focus on – the aging face (so, they discriminate against the young), Asian rhinoplasty (so, they discriminate against non-Asians), African American skin treatment (so they discriminate against non-African Americans). What allows such practices to do what they do is they have a reason. Their background, training, and experience is limited to a narrow domain. Their results in their domain of excellence will be better than when they stray outside of that domain.

Many surgeons were trained to do a range of procedures. If they have not performed procedure X in 30 years, they likely are rusty. Perhaps it would be better to refer that patient to someone else. That someone else will get a better result. And the reason must be objectively true.

If you do not want to perform a superficial surgery on a patient with hepatitis C because of your perceived risk of sticking yourself with a needle, good luck with that. You may have a valid subjective reason to turn the patient away. But objectively, you would lose a case alleging disability discrimination. Just double glove.

Not surprisingly, in California all types of lawsuits are propelled, alleging discrimination.

Here are California cases where claims of age and gender discrimination were pushed back.

Pizarro v. Lamb’s Players Theatre, 135 Cal. App. 4th1171 (4th Dist. 2006) (theater did not violate the Act by offering discount prices to “baby boomers” to attend a musical about that generation, inasmuch as it allowed greater access to the theater); Sargoy v. ADR Tr. Corp., 8 Cal. App. 4th 1039 (Cal. App. 2d Dist. 1992) (age-based preferences are justified by compelling state interests and are consistent with the public policy favoring assistance to the elderly). In Frye v. VH Prop. Corp., B246991, 2014 WL 69126, at *4 (Cal. App. 2d Dist. Jan. 8, 2014), the Court of Appeal in an unpublished decision affirmed the dismissal of gender discrimination claims against a golf course, for its offering of discounts and free gifts during Breast Cancer Awareness Month. The court noted that the public policy of promoting breast cancer awareness was “more compelling” than it was in Pizarro.

Third, courts have rejected claims of gender discrimination where the activity uses gender as a proxy for a different category of people—such as mothers or people at risk of breast cancer. In Cohn v. Corinthian Colleges, Inc., 169 Cal. App. 4th 523, 86 Cal. Rptr. 3d 401 (2008), for example, the court held that the defendant’s Mothers’ Day promotion, in which female attendees at a baseball game received a free tote bag, did not violate the Unruh Act because “the giveaway was based on motherhood, with gender only a secondary consideration.” That is, the intent of the promotion was not to honor women above men, but mothers against the rest of the population, and giving tote bags to adult females was a practical alternative to taking the time to verify that each woman who received a tote bag was in fact a mother. The court reasoned that because only women can be mothers, the discrimination did not emphasize an irrelevant difference or perpetuate an irrational stereotype.

So, discrimination against patients is permissible if it is not illegal discrimination. Disparate treatment is allowed so long as it is not “arbitrary, invidious or unreasonable.” There must be an objectively valid reason. This can include your medical background, training, and experience. You are not required to stumble through a procedure and deliver questionable results if it’s been years since you operated on a specific type of patient and if specific training and experience are required to deliver excellent results to THAT type of patient.

What do you think?

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.