“Some signs that somebody might not be performing well could be due to, for example, undergoing chemotherapy rather than to age — or other issues that are treatable.”
Aaron Tandy, partner at Pathman Schermer Tandy, LLP
Doc getting too old? Address the impairment, not the age, experts say
By Roy Edroso
If you suspect an aging provider is no longer competent to perform, experts suggest you lean on the “no longer competent” rather than the “aging” angle. Also, document the issue and try to reach a reasonable accommodation with the provider.
In 2015, the AMA found that 23% of practicing physicians were 65 or older. This “graying” physician population has been noted as a potential patient care and safety issue, according to outlets such as Medscape, which recently held a roundtable on the subject of aging physician competence, and The New York Times, which in February asked, “When Is the Surgeon Too Old to Operate?” The Times mentioned mandatory assessment protocols such as the “aging surgeon program” at Baltimore’s Sinai Hospital, which evaluates the abilities of elder physicians.
“This has become a hot topic in the last 10 years or so among the medical communities, because you have an increasing number of late career physicians, and with it a huge demand by the public to hold physicians in general accountable — take, for instance, the demand for accountability due to the opioid crisis,” says Miriam Mackin, an attorney with Nelson Hardiman in Los Angeles.
But it’s an observable fact that many physicians are fully capable of practicing well into what many of us would consider old age. “I know physicians in their 80s who are outstanding in their specialty and there’s no reason why they shouldn’t practice,” says Karen Rotgin, head of her own law firm in Uniondale, N.Y. At the same time, there are “doctors in their 50s who may develop issues, whether cognitive or physical, that impair their ability to treat,” she says.
In fact, the key federal law on age discrimination, the Age Discrimination in Employment Act of 1967 (ADEA), prohibits bias “against persons 40 years of age or older.” At the time of its drafting, explains Aaron W. Tandy, a partner with the Pathman Schermer Tandy, LLP law firm in Miami, it was presumed most professionals would retire at 65, which may have lowered expectations as to when age discrimination would kick in.
The existence of ADEA — not to mention state-level ADEA-based laws — may leave practice managers apprehensive that any attempt to keep an enfeebled, elder provider from giving substandard and even dangerous treatment to patients will subject them to prosecution. Certainly multi-million-dollar judgements like the $15.4 million in damages awarded to sports columnist T.J. Simers in his age discrimination case against the Los Angeles Times would make any employer nervous.
Focus on impairment, not age
One issue for practices is they don’t generally have the many levels of oversight in the form of “fail-safes and committees” that hospitals have, Tandy says. He thinks you’re on safer ground if you focus not on age but on the care and safety issue, as well as on reasonable accommodations you can make with the provider.
For one thing, providers can be impaired for a number of reasons. They may be suffering from drug, alcohol or mental health issues (PBN 4/26/18, 8/22/19). “Some signs that somebody might not be performing well could be due to, for example, undergoing chemotherapy rather than to age — or other issues that are treatable,” Tandy says. “Therefore employers need to be sensitive when undertaking evaluations.”
Whatever the issue is, it need not mean an end to your professional association with the provider. “Let’s take a specialist who sometimes performs surgery,” Rotgin says. “Let’s say this particular physician has developed an impairment, maybe tremors, which could potentially make for a negative situation in the operating room and could pose a danger to patients. One option might be that the physician no longer performs surgery and only does consults. This can be a solution — at least for the short term, because some illnesses do progress and that accommodation may not be viable down the road.”
If the stress of workload is an issue, you might offer the provider shorter hours. Tony Stajduhar, president of Jackson Physician Search in Alpharetta, Ga., says his company recently surveyed more than 500 physicians and found that “48% would like to reduce their hours prior to retiring, a more affordable alternative than temporary staffing options.”
4 tips for better handling
- Create written protocols that spell out how physician impairment is judged and dealt with. “It might be their employment agreement or a partnership agreement or a shareholders’ agreement or a combination,” Rotgin says. “In any case it should have a roadmap that says when someone can be terminated or put on disability, or needs to be bought out.”
- Hold a non-confrontational meeting with the physician. While in a sense you will be confronting the physician, the tone of your meeting on this topic “should not be accusatory,”
Rotgin says. “It needs to be a concerned discussion that doesn’t threaten and opens up to a broader discussion which may present some options” for resolution. Also, “you have to document that conversation, which should be up front and professional,” Tandy says. “And it probably doesn’t hurt to have more than one person in the room with you.”
If the conversation goes sideways and you have reason to believe the physician represents a danger to patients, “you may have a legal obligation to report the physician and your concerns to the appropriate agencies,” Rotgin says. These may differ from state to state, but would certainly include medical boards. If it isn’t obvious, you should also be in contact with your lawyer about the matter.
- Include testimony from witnesses. In case the discussion between you and the physician becomes adversarial, any observation of impairment from colleagues or patients that comes to management should be affirmed by the witness where possible, “and human resources should likely take point in organizing everything,” says Stacy Caprio, an independent business consultant based in Chicago.
- Consider mandatory screenings. While age-based discrimination is off limits, age-based screenings can be OK if everyone has to take them. The California Public Protection and Physician Help Program recommends an age-based physical and cognitive screening that “applies equally to all members of the medical staff who have reached the specified age.” It’s like mandatory drug testing for employees or the regular recertification that some jurisdictions require of their police officers and firefighters, Tandy says.