Race-Based Medicine Contributes To Civil Rights Violations, According To New Analysis

The Centers for Disease Control (CDC) specified underlying Covid-19 comorbidities like Chronic Kidney Disease (CKD) as medical grounds for the compassionate release of incarcerated people, when it released new guidelines in 2020.

But a recent paper in the Stanford Technology Law Review examines how some compassionate medical release decisions for incarcerated people were guided by a practice that lead to systemic underdiagnosis and under-staging of CKD in Black people.

The estimated glomerular filtration rate (eGFR) is a medical tool regularly used by healthcare providers to ascertain how well a patient’s kidneys are filtering certain substances in the blood. Until 2021, eGFR underestimated the severity of kidney disease in Black patients because of an added race-variable.

“The original studies to develop the eGFR equation widespread added a race-multiplier, which produced separate estimates for Black and non-Black patients. This eGFR race multiplier falsely characterizes race, a social construct, as a biological or genetic reality,” said Dr. Rohan Khazanchi, a physician-researcher at the Brigham and Women’s Hospital and senior author of the article, in an interview.

In other words, the eGFR race-multiplier dangerously assumes and standardizes that Black kidneys are inherently different from white kidneys.

Juyoun Han, a law partner at Eisenberg & Baum, LLP, was the lead author on the study with Khazanchi and Dr. Jennifer Tsai, a physician-researcher at the Yale School of Medicine.

“Compassionate release is a mechanism that allows for a humane decision for eligible incarcerated individuals to return to society. But the catch is that even such a mechanism is tarnished with the human condition of racism and bias,” said Han in an interview.

Embedding race-based multipliers in the eGFR tool, Dr. Khazanchi said in an interview, led to several incarcerated Black people with CKD being denied compassionate medical release, which would have otherwise been granted if they were white.

Han represented an incarcerated Black man named “JR” with CKD who had his compassionate medical release petition denied because he did not meet eGFR thresholds when the race-multiplier was used, as the New York Times reported last year.

“We allege in the complaint that JR should have been diagnosed with Stage 3 Chronic Kidney Disease, but that his race was determinative in being underdiagnosed,” Han said via email. “We cite the court records of non-Black individuals who had the same eGFR score as JR (without the Black race multiplier) who were able to show eligibility for medical compassionate release. We allege that, while compassionate release is a case-by-case decision by the judge based upon a comprehensive set of factors, JR’s inability to show a CKD diagnosis played a large role in his denial of compassionate release.”

Han’s efforts have not been in vain. After she brought JR’s case forward, the Federal Bureau of Prisons (BOP) released a new memorandum [in 2022], supposedly discontinuing the use of race-based medical algorithms.

The memorandum reads: “Effective July 12, 2022, our laboratories are changing the calculation of estimated glomerular filtration rate (eGFR) from creatinine to the new CKD-EPI 2021 equation that does not include a race coefficient…For most patients the eGFR result will be similar, however, for some, the values may differ by more than 10%…”

Han said there is still work to be done, especially when it comes to patients already harmed by race-based algorithms.

“While this is a good first step, we are concerned the problems will persist unless the policy applies to all internal and external medical facilities that provide care for individuals incarcerated in the BOP, and we advocate that all individuals previously affected by the race-based eGFR be re-evaluated and granted appropriate remedies.”

According to Khazanchi, medical organizations like the Organ Procurement and Transplantation Network, which is seeking to “give time back to CKD patients on transplant waiting lists who’s disease severity has been underestimated by race-multipliers,” are already exploring other mechanisms to address those previously impacted by race-based medical algorithms.

Beyond eGFR and CKD, the study also explored other examples of litigation related to race-based medicine, such as NFL concussion protocols that handled Black players’ head injuries differently than white players’ head injuries and race-based pulmonary function algorithms that stage lung diseases differently for Black patients, ranging from Covid-19 lung injuries to asbestos exposure-related damage.

Solutions to address racialized medical algorithms require an actively anti-racist approach, according to George Hutchins—an MD-PhD student in the Department of Sociology at Harvard University who examines the cultural reproduction of health inequality for those with criminal legal histories and how restorative justice can serve as a tool of liberation and health transformation.

“When such tools are developed without an understanding of how racism colors every facet of social life, our decisions are not liberated from white supremacy, but further constrained by it. Though steps in the right direction are being taken, without fully engaging anti-racist praxis the field of medicine will remain stagnant with regard to health equity,” said Hutchins in an interview.

Although there is currently no federal mandate to end race-based medicine, the study highlighted how Section 1557 of the Affordable Care Act (ACA), which prohibits discrimination in health care, can be utilized to give the U.S. Department of Health and Human Services a mechanism to reevaluate race-based medical algorithms.

Khazanchi says the federal government could utilize Section 1557 “to meaningfully regulate and intervene upon race-based algorithms which exacerbate health disparities,” while also supporting health systems, payors, and public health agencies who implement “racism-conscious approaches to reduce health inequities, including those caused by inequitable algorithms.”