Question: We have several older surgeons on our medical staff. We do not have any quality data to show that they are practicing in an unsafe way but we would like to be proactive since we have heard rumors at least about some of them. Can we require that all physicians over the age of 70 be reappointed annually and/or get a physical and neurocognitive exam?
Answer:
Dealing with older physicians typically feels like the proverbial “rock and hard place.” These physicians often have served in leadership positions on the medical staff and maybe even the board. They are committed to their patients and to the practice of medicine. And, given the physician shortage, we need them.
At the same time, we have an obligation to protect patients and to only allow physicians who are safe and competent to practice.
With respect to physicians, the conventional wisdom was that “practice makes perfect.” Several studies have turned this wisdom on its head. A 2005 article in the Annals of Internal Medicine showed that there was an inverse relationship between performance and years of practice. In other words, performance declined as years of practice increased. Even though another study, reported in the Annals of Surgery in 2006, had slightly different results and reached a different conclusion, older physicians still had a higher mortality rate in three out of eight procedures.
However, establishing a rule that “all physicians over age 70 must be reappointed annually” or “must be subject to a focused evaluation” or “must undergo a physical and neurocognitive examination” may not be consistent with state or federal antidiscrimination laws. As the Oury case (discussed above) demonstrates, we are seeing a growing number of claims brought by physicians under the Age Discrimination in Employment Act (ADEA) and similar state laws. Although the federal law allows age to be used as a factor in employment decisions if age is a “bona fide occupational qualification,” establishing this is no easy matter.
Therefore, we recommend that the best approach, to address concerns about patient care and safety, is to improve your peer review process and address concerns as they arise. This improvement can start with education. Physicians, advanced practice providers, and staff alike need to understand their obligation to report concerns through the peer review process. Enabling an impaired physician, even if that physician is a beloved elder surgeon, is not good for patients and ultimately not good for the physician. (Who wants to end a stellar career with a horrible patient outcome and an ugly lawsuit to boot?)
Once a concern has been reported, an individualized and focused review of the physician’s practice can be initiated. This review can include proctoring, monitoring, a competency assessment, and a physical or neurocognitive examination. The record of concerns will support that the action was legitimate and non-discriminatory and will be useful to have if a claim for discrimination is brought.
While bright line rules are sometimes nice to have, in this area, we think a rule that singles out older physicians may be counterproductive and an invitation to be sued.
Learn effective ways to handle the aging physicians on your medical staff at The Complete Course for Medical Staff Leaders and The Advanced Roundtable for Physician Leaders. Both will be held in San Francisco, October 25-27, and New York, November 15-17.