Nurse sues after hospital grants dad's racial request

Robin Erb, Detroit Free Press | USATODAY

FLINT, Mich. -- An African-American nurse who is suing a Michigan hospital because she said it agreed to a man's request that no African-American nurses care for his newborn recalled Monday that she was stunned by her employer's actions.

"I didn't even know how to react," said Tonya Battle, 49, a veteran of the neonatal intensive care unit and a nearly 25-year employee of the Hurley Medical Center in Flint.

Battle's lawsuit states a note was posted on the assignment clipboard reading "No African American nurse to take care of baby," according to the eight-page complaint against the medical center.

Hurley, which according to its website was founded in 1908 and is a 443-bed teaching hospital, released a brief statement Monday, saying that it "does not comment on past or current litigation."

Battle said she was working as a registered nurse in Hurley's neonatal intensive care unit Oct. 31, when a man walked into the NICU, where Battle was at an infant's bedside. He reached toward the child, according to the lawsuit filed in Genesee County (Mich.) Circuit Court last month.

"I introduced myself to him. 'Hi, I'm Tonya and I'm taking care of your baby. Can I see your (identification) band?,' " Battle said, referring to the hospital-issued identification used to identify infants' parents. "And he said in return, 'And I need to see your supervisor.' "

Perplexed by his curtness, she asked for the charge nurse, who spoke separately to the man.

When the charge nurse returned, she told Battle that the father didn't want African Americans to care for his child. Further, the charge nurse told Battle that he had rolled up his sleeve to expose what appeared to be a swastika.

"I felt like I froze," Battle said. "I just was really dumbfounded. I couldn't believe that's why he was so angry (and) that's why he was requesting my charge nurse. I think my mouth hit the floor. It was really disbelief."

The charge nurse passed the request to her supervisor, and Battle was reassigned, according to the complaint.

Even after hospital officials removed the sign that had been placed for a short time on the assignment chart, Battle and other black nurses were not assigned to care for the baby for about a month "because of their race," according to the lawsuit. Battle is seeking punitive damages for emotional stress, mental anguish, humiliation and damage to her reputation.

Battle said colleagues have told her they were surprised at the hospital's stand and they have been supportive. But she said she felt the issue was important enough to pursue the matter legally because she expected Hurley to have turned down such a request.

"What flashed in my mind is, 'What's next? A note on the water fountain that says 'No blacks?' Or a note on the bathroom that says 'No blacks'?" she said.

Larry Dubin, a law professor at University of Detroit Mercy School of Law, called the hospital's actions, if true, "morally repugnant."

"The patient's father has the right to select the hospital to treat the child. The father does not have the right to exercise control over the hospital in discrimination of its employees," he said.

The case "puts into tension two different facets of the law," said Lance Gable, an associate professor specializing in health law at Wayne State University Law School.

Patients choose their doctors, he said. Some women prefer to see female gynecologists, for example.

"But there are also laws prohibiting discrimination," he added, citing the 1964 Civil Rights Act, among others.

"The bottom line is that the law is not clear about this, although I suspect the nurse will have a pretty strong case," Gable said.

One in three doctors in a 2007 survey said they felt patients believed they got better care if they matched their doctor's race. Patients' requests were more likely to be honored if the request came from someone who was female, non-white or Muslim, according to a report on the survey written in part by a University of Michigan researcher.

But just how often hospitals receive requests based on race is unclear.

Vickie Winn, a spokeswoman for Children's Hospital of Michigan, said the hospital may try to accommodate a patient's request for providers with a certain religion or gender, but a request for a doctor based on race is different, she said.

"It has come up in the past, but generally speaking, we don't accommodate that. ... We have a very diverse population, and we just don't feed into those kinds of beliefs," Winn said.

Julie Gafkay, an employment discrimination and civil rights lawyer in Frankenmuth, Mich., who is representing Battle, said medical personnel might receive such requests from time to time, but employers must guard against racial discrimination.

"I don't doubt that people have made requests like this in the past. You're not going to control the prejudices and biases of people. That's not my client's issue. The problem she has ... is that her employer of 25 years granted" the request.

She added: "We made a decision in this country that that kind of discrimination is wrong."