Healthcare research has shown systematic discrepancies in levels of patient care – in particular, women and minorities frequently suffer from judgment errors that negatively affect their care specifically, errors resulting from knowledge gaps and errors resulting from bias. In cases of biased treatment decisions, judgment errors can often be shielded from legal scrutiny as long as the chosen treatment falls within professionally accepted norms.

Maytal Gilboa, an Associate Professor at Western University’s Faculty of Law, argues that the structure of the duty of care in medical malpractice may provide a harbor for racial and gender bias. In this paper, she proposes a creative use of the “loss of chance” doctrine to compensate plaintiffs who can prove that they have received biased care.

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This work is also available online at https://digitalcommons.law.uga.edu/glr/vol57/iss2/2/