University of Pennsylvania stops banning non-black races from doctor directory to end lawsuit

Five months after medical advocacy group "Do No Harm" sued the University of Pennsylvania, its medical school and health system, a Philadelphia-area consortium of medical schools and an African-American-owned and operated talk radio station for excluding non-black doctors from a directory for black patients, the defendants have thrown in the towel.

U.S. District Judge Harvey Bartle entered a final judgment in favor of Do No Harm and against the Penn defendants, Consortium of DEI Health Educators and WURD Radio for $1 in nominal damages after the defendants made an offer of judgment, three weeks earlier, to rename the Black Doctors Directory and stop considering race in eligibility for inclusion.

The defendants filed motions for extension to respond to the lawsuit as many as four times each, most recently July 25, and made the offer of judgment a day before that motion's deadline, suggesting a lack of legal confidence in the racially exclusive directory.

Promoted "culturally affirming" health care

It was created last fall and promoted in a splashy video by WURD Radio, with Penn Medicine Associate Dean for Diversity and Inclusion Horace Delisser claiming black doctors "use their knowledge to inform their care in ways that are culturally appropriate and culturally affirming" and "are able to help the patient overcome" mistrust in the medical system.

WURD Radio President and CEO Sara Lomax, whose late father was the namesake for the directory, claimed to be its driving force, asserting that when blacks "enter the health systems, our humanity is not seen, it's not valued, it's not respected." 

Penn Health Systems CEO Kevin Maloney, who is white, said the directory shows it is "committed to taking steps to reduce the structural racism that exists in America" and is "one step in many steps" to "treat each other as equals."  

The Ivy League university was already facing a costly fight with the Trump administration as it repeatedly asked for delays to respond to Do No Harm's lawsuit.

The administration paused $175 million in Penn's federal funding for letting males such as Lia Thomas compete on its women's swim team and then deemed it guilty of violating Title IX for that policy and for letting Thomas allegedly expose male genitalia to female athletes.

The parties eventually struck a deal in which Penn agreed to apologize to the women who competed alongside Thomas and restore any titles, awards, or records impacted by Thomas's wins, though Penn is still under Department of Education investigation for its foreign funding.

"Do No Harm has long opposed ‘racial concordance,’ a thoroughly debunked theory that only breeds suspicion and prejudice" yet served as the basis for only listing black doctors, Do No Harm chairman Dr. Stanley Goldfarb said in a press release. "When medical providers prioritize expertise and high-quality care, patients will see better health outcomes."

Controlled on a day-to-day basis by WURD Radio, the newly renamed Community Health and Wellness Directory will "consider any licensed physician in the greater Philadelphia area who demonstrates a commitment to treating patients and communities historically and currently underserved" for inclusion, without asking for or considering race.

The offer of judgment says they reached a "separate agreement" on attorney's fees and costs, and it's not "an admission of liability" by the defendants.

Do No Harm's March lawsuit stems from its two-year-old research into the evidence used as a basis for racial concordance, which "states that patients do better when they are the same race as their doctors and that they do worse when they are a different race from their doctors."

The group's paper says advocates cite a "small number of studies" that are "generally cherry-picked and decisively outweighed by the full body of scientific research on the topic," with four of five systematic reviews, the most rigorous form, showing "no improvement in outcomes," while the fifth inexplicably omits contradictory studies and distorts its featured studies.

The theory is embraced by not only mainstream medical organizations and politicians but "members of the Supreme Court," the paper says, with a corollary that "medical schools are prioritizing diversity in student admissions." 

New research by Do No Harm, based on public records requests for admissions data on race, undergraduate grades, Medical College Admission Test (MCAT) scores and acceptance rates for students admitted last year, concluded that medical schools are still admitting blacks with lower MCAT scores than rejected whites and Asians, at least "skirting" SCOTUS precedent.

"Research shows that racial congruence in healthcare—when patients are treated by doctors who share their race—improves outcomes for African American patients," the old Black Doctors Directory claimed without citing evidence. 

The searchable directory listed black doctors from Penn Medicine, Jefferson, Temple, Drexel and other med schools. The web address, PhillyBlackDoctors.com, no longer works.

White doctor with "some ties to Penn Medicine" blocked

As an operation of Penn Medicine and the consortium's members, who all receive federal funding, the directory is obligated to follow Title VI of the Civil Rights Act and Section 1557 of the Affordable Care Act by not discriminating based on race, the suit said. 

The defendants also committed civil conspiracy under state common law by excluding Do No Harm's non-black members, the group alleged. It only mentioned one, a white "experienced dermatologist in southeastern Pennsylvania" with many black patients, whose practice overlaps with "autoimmune issues, cancer, and infectious diseases."

He remains anonymous due to "some ties to Penn Medicine" and fear of retaliation from health professionals, Penn Medicine and the public.

The new website at WURDdocs.com removes all references to black ethnicity except for another unsourced claim that "countless studies" show blacks "often get sicker earlier and die more frequently from preventable illnesses" regardless of education, income or health insurance. The old site said 45% of the city is black, and the new site, 70% "people of color."

It promises to feature doctors "committed to serving patients and communities traditionally underserved," with no mention that either race is considered or ignored.

The consortium also renamed itself during the litigation, though it's not clear when, with its website down for maintenance for at least several hours Feb. 23 but its LinkedIn page still using the old name as of March 17, archived by Do No Harm.

Using the same acronym, it now goes by the Consortium Dedicated to Health Equity Education but does not use the full name anywhere on its site, only referring to "the Consortium." It has three filler blog posts all dated Aug. 18, containing only placeholder text.

The Consortium's purported mission has flipped as well, from increasing "the number of historically underrepresented and socioeconomically disadvantaged students, faculty, educators, and administrators" in healthcare and biomedical science, to simply helping students, faculty, educators and administrators in those fields, with no further qualifiers. Currently, the web page depicts fewer than five white healthcare professionals or patients among its images, and most of the photographs appear to be stock photography, according to a Google Lens search.