QUESTION:
Our hospital’s medical staff is working on a policy to screen older practitioners at reappointment for health issues that may affect their clinical ability.  A member of the MEC was previously at a hospital with a similar policy in place. She has spearheaded the effort and noted that her previous hospital’s policy was able to detect health issues with three elderly physicians.  While the preliminary discussions have been overwhelmingly positive, a couple of our physicians in their 70s voiced dissent with the policy at the last full medical staff meeting because they feel singled out.  Should we be worried about them suing the hospital if the policy is put in place?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY JOHN WIECZOREK:
The current legal status of these types of “late career practitioner policies” is in flux.  Late career practitioner policies which screen older physicians at reappointment have been around for decades.  There are published articles detailing the various methods for implementing a late career practitioner policy and how effective those policies were. The rationale for the policies makes sense – catch any potential problems proactively before any patient harm or clinical trends appear.

However, in early 2020 the Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit against Yale New Haven Hospital based on its late career practitioner policy.  The EEOC alleged that Yale New Haven was violating both the Age Discrimination in Employment Act (“ADEA”) and Americans with Disabilities Act (“ADA”) by singling out physicians solely on the basis of their age.  While Yale New Haven is fighting the still-pending lawsuit, certain other hospitals and health systems have withdrawn their policies and paid damages to older physicians after being targeted by the EEOC.

Therefore, creating a new late career practitioner policy or continued enforcement of an old policy creates some legal risk, at least while the EEOC lawsuit against Yale is still pending.  Ultimately, the decision to move forward with such a policy needs to be deliberate, with buy-in from both the hospital’s medical staff and administration, and the knowledge that an adverse court opinion in the EEOC lawsuit will immediately put the brakes on such a policy.

For follow-up questions, please contact John Wieczorek at jwieczorek@hortyspringer.com.