How Ageism Hurts Physicians & Patients

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Ageism is defined as stereo­typing, prejudice or discrimination against individuals on the basis of their age. According to the American Medical Association (AMA), 43% of all physicians and surgeons are 55 or older. Specialists are, on average, older than primary care doctors. In addition, around 30% of the current U.S. population is older than 55, and that percentage is increasing in the aging baby boomer and silent generation demographics. These numbers set the stage for increasing incidents of ageism.

Advances in medicine have given humans longevity, but that longevity may be squandered if the medical community has a negative perspective on late age physicians.

Medical Ethics: Origins & Controversies

The expression do no harm has been used throughout history to express an underlying ethical principle of medicine. Although this phrase is generally associated with the Greek Hippocratic Oath, it most likely originates from another ancient medical text, Of the Epidemics, which states, “The physician must be able … to do good or to do no harm.”

This implies physicians must abstain from acting in lieu of potentially harming a patient. This is particularly true today, when a physician’s act of practicing medicine creates malpractice risk. The key to understanding how and when to act or abstain from certain actions in practicing medicine is whether the physician can effectively identify their own biases or proficiency in treating patients.

Physicians may be unaware of the risk of harm to patients from ageism. They may act, or fail to act, because of beliefs they hold relating to a patient’s respective age. For example, they may attribute an older patient’s complaints of knee or back pain, trouble sleeping, poor short-term memory or difficulty breathing to normal symptoms of advanced age.

Ageism is also apparent when employers exhibit bias toward physicians they perceive as ineffective simply because of their age and attempt to impose mandatory competency assessments or age-based retirement policies. Currently, about 5% of healthcare facilities have age-related screening policies. Common ageism policies include requiring late-age testing for physician competency or skills without objective, evidence-based methods; making disability-related inquiries; or requiring an employee undergo physical, medical or cognitive examinations without the reasonable belief or justification that a physician cannot perform the essential functions of their job.

These policies have been met with fierce opposition from physicians. As a result, certain states, such as Utah, have passed legislation prohibiting or restricting healthcare facilities from requiring a physician to undergo competency testing or retirement at a certain age.

Although ageism against younger physicians is far less common, it is surprisingly not unheard of, particularly in specialty areas in which the knowledge gap is much wider due to experience, although this is rarely reported.

Legality of Ageism

Federal Laws

The Age Discrimination in Employment Act (ADEA)—The ADEA protects individuals who are 40 years of age or older from employment-related age discrimination, such as forced competency testing, age-based terminations or mandatory retirement policies. The law also makes it illegal to retaliate against a person because the person complained about employment-related age discrimination, filed a charge of discrimination or participated in an employment discrimination investigation or lawsuit.

Although courts have generally accepted mandatory retirement ages for occupations involving public safety, such as for pilots of commercial planes, FBI agents or even state judges, mandatory retirement or competency tests for physicians have generally not been reviewed or upheld. Courts would likely reject an employer’s argument that a mandatory age requirement for physician competency testing or retirement would be justified for public safety.

Therefore, employers should continue to evaluate or screen physicians objectively on an individual or specialty basis and not through broad or generalized age-based policies.

The Americans with Disabilities Act (ADA)—The ADA prohibits adverse employment actions based on an individual’s disability, whether cognitive or physical. This law makes it illegal to discriminate against a person with a disability in private or public employment settings and prohibits retaliation against a person because they complained about discrimination, filed a charge of discrimination or participated in an employment discrimination investigation or lawsuit. Moreover, an employer must have objective evidence that an employee’s ability to perform the duties of their job is impaired by a condition and that a threat is posed to others as a result of their condition(s).

Ageism is apparent when employers exhibit bias toward physicians they perceive as ineffective simply because of their age & attempt to impose mandatory competency assessments or age-based retirement policies.

Although an employer may make reasonable inquiries about an employee’s medical conditions and require a medical or cognitive examination when necessary, the impetus may not be based on age alone but requires a more comprehensive assessment. If a physician does, in fact, have a legitimate disability but could continue performing their professional duties, an employer is required to accommodate such physicians to a reasonable degree to allow them to continue doing their job.

If an accommodation cannot eliminate an unreasonable risk of harm to patients, the physician cannot be guaranteed protection under the ADA, and the employer would, consequently, have a bona fide occupational qualification defense to requiring testing or further measures to prevent patient harm and undue hardship.

The Equal Employment Opportunity Commission (EEOC)—The EEOC has successfully challenged mandatory retirement policies or other forms of age and disability discrimination and has continued to achieve significant settlements on behalf of filing employees.

Recently, the EEOC filed an age and disability discrimination lawsuit against Yale New Haven Hospital based on its blanket “late career physician” policy, which requires a number of mandatory tests starting at age 70.

If employers want to avoid expensive and reputation-damaging lawsuits, they should consider the risk of implementing age-based policies and endeavor to use more objective criteria in conjunction with comprehensive peer review, patient outcomes or other type of professional evaluation.

State Laws & Regulations

Most, if not all, states have age and disability discrimination laws that protect physicians from ageism. Some states, such as California, are stricter in their enforcement of age discrimination, and others, such as New Jersey, need to work on enhancing age discrimination laws and eliminating provisions that allow certain employer actions at specific age thresholds.

Medical Boards & Licensure—State medical licensing boards play a significant role in ensuring physicians provide competent services to patients by making assessments on an annual or case-by-case basis. State medical boards can incorporate age-based screening tests as part of the licensure or renewal process (similar to driver’s license renewals), which would be uniform throughout the state, as opposed to inconsistent policies that exist among healthcare facilities for particular subsets or age groups of physicians.

Medical boards also evaluate physicians based on reported adverse episodes of care and take action that may affect a provider’s privileges or issue decisions that may be made public following a disciplinary committee meeting, further discussed below.

Board certification is another way state medical boards may require competence testing, but this is usually based on formal exams and not usually based on age alone. Actions taken or standards established by state medical boards are likely to be less scrutinized and viewed more favorably by courts, including when based—even in part—on age, because screenings and examination can be incorporated into existing continuing education and license renewal requirements.

Peer Review Laws—Peer review is another aspect of modern physician assessment with confidentiality and privilege protection that varies by state. Generally, adverse events discussed during peer review proceedings and the records of peer review committees are protected from discovery to facilitate open discussion between healthcare providers regarding care and treatment rendered to patients by colleagues without fear of retaliation.

Members or participants in peer review sessions cannot be compelled to testify in a civil lawsuit regarding what was discussed; however, the privilege is not absolute. The key is that opinions and findings must originate within the peer review process to have protection. If they existed outside of peer review or are subsequently disclosed, the privilege no longer exists.

Peer review laws may also protect physician competency test findings or internal peer reviews at a facility based on a physician’s periodic or annual performance. If peer reviews take place within a hospital committee or physician practice, they are usually privileged and may be subject only to review by courts. However, if a peer review assessment is done by a medical board for a disciplinary hearing, the assessment remains confidential, but adverse findings are often made public.

Peer review can be an effective tool when used with other objective methods to evaluate competency, but also poses a risk for abuse in the clinical setting if used to unfairly force certain physicians out for subjective or other reasons subject to personal bias, which is why it is not favored as the only method of evaluating physician performance.

Where Do We Go from Here?

Many physicians choose to work past retirement age, providing valuable knowledge and advanced skills, and employers increasingly focus on ensuring these physicians are both physically and mentally fit to provide safe and high-quality care. The challenge for employers is to make sure they are adopting policies that don’t run afoul of the ADEA or ADA. A court is more likely to find testing for a particular specialty (e.g., fine motor-skill tests for surgeons) to be legitimate when such tests are evidence based and not subject to arbitrary interpretation or based on age alone.

In 2018, the AMA’s council on assessing competency of senior, or late-career physicians failed to gain adoption of a set of guidelines for age-based competency testing. Many physicians objected to this action, concerned that it could be used to unfairly force out or inadvertently remove certain aged physicians from practicing, ultimately worsening the existing physician shortage. Additional feedback from medical profes­sionals notes that aging is nuanced and highly varied. As such, ageism fails to account for early-onset dementia in middle-aged physicians or for senior physicians who practice well beyond age 70 with cognitive sharpness that rivals younger colleagues.

Age screening examples modeled by healthcare institutions show very different approaches and suggest there is no one-size-fits-all answer. The Stanford Health Care System, Calif., uses a peer review method, while others opt for a combination of tests for providers at varying age thresholds. The continuing concern with age threshold tests points to the example of Yale’s false positive physician cognitive test results, requiring further evaluation and exposing the risk of unfairly excluding advanced physicians who offer valuable skills and medical judgment.^1,2

Although physicians in some states or at certain institutions may be required to undergo age-based screening exams, they should take steps to ensure these tests are based on objective criteria, lean on patient outcomes and performance data, and question whether screenings are an objective test of cognitive ability and not just solely related to age.

Meanwhile, the medical and legal communities continue to look to the courts for new precedent and to medical governing bodies across the states for more uniform standards.

Steven M. Harris, Esq., is a nationally recognized healthcare attorney with McDonald Hopkins LLC. Contact him at [email protected].

References

1. Armstrong KA, Reynolds EE. Opportunities and challenges in valuing and evaluating aging physicians. JAMA. 2020 Jan 14; 323(2):125–126.
2. Cooney L, Balcezak T. Cognitive testing of older clinicians prior to recredentialing. JAMA. 2020 Jan 14;323(2):179–180.