The physician population in the United States is aging each year. Efforts by hospitals to ensure patient safety by evaluating competence of late-career or senior physicians have created controversy. Ultimately, promoting competence of senior physicians and patient safety is a shared responsibility and must be resolved with input and consideration from all stakeholders. This article examines the significance of the issue, approaches considered by health care providers and entities, and legal considerations for age-based screening policies.

United States Physicians Are Aging

Promoting competence of senior physicians is increasingly important as United States physicians advance in age. According to the American Medical Association’s (“AMA”) Physician Master File, “42% of practicing physicians in the United States are 55 years old or older. This includes approximately 336,000 of some 800,000 physicians who currently are in active patient care.”¹ One in four physicians in the United States is over age 65, and the number of physicians in this age group quadrupled between 1975 and 2013.² The issue for health care providers and entities is how to discern whether a senior physician is competent to continue practicing.

Health Care Providers and Entities Must Assess Competence of Senior Physicians

Health care entities should evaluate their specific culture and in cooperation with the medical staff, determine how best to address concerns relating to competence and safety of senior physicians. Three primary approaches have been proposed: (1) case-by-case assessment of senior physician competence; (2) age-based mandatory retirement policies; and (3) age-based screening policies. Each approach is discussed below.

Case-by-Case Assessment of Senior Physician Competence

Hospitals and physicians have long been required to assess the ability of each physician to provide quality health care to patients. Hospitals require verification of all physicians’ health status at appointment and reappointment and rely upon existing credentialing, peer review, and physician wellness policies to address reported concerns regarding potential impairment, including age-related impairment. Health care entities that employ or privilege physicians have an obligation to assess physicians’ health in the hiring and privileging process.³ In addition, physicians must maintain their health and wellness, and if a health issue arises, they must seek appropriate help and honestly assess their ability to continue practicing safely.⁴ In addition, physicians are ethically obligated to report impaired colleagues when they believe a possible impairment interferes with the colleague’s ability to practice safely.⁵ Often, a hospital will establish a health and wellness committee, comprised of physician peers, to confidentially review concerns regarding a practitioner’s health. If a health concern is raisedregarding a practitioner, the role of the health and wellness committee is typically to encourage the practitioner to participate in an assessment of his or her competence to practice. If the practitioner refuses to submit to a health screening, the issue is often referred to the hospital’s medical executive committee for review. If the medical executive committee or the Hospital’s governing board takes an action that adversely affects a practitioner’s ability to exercise his or her privileges for more than 30 days based on the physician’s competence or conduct, the hospital must report such action to the National Practitioner Data Bank.⁶

While identifying potential impairments prior to an adverse event occurring is ideal, it is more often the case that reports regarding competence concerns result from an adverse event. Physicians who suffer from age-related cognitive or neurological conditions may not self-report because they may not perceive the decline in their health or the potential impact on patient care.⁷ In addition, physicians are hesitant to report colleagues who may suffer from age-related impairment due to empathy and respect for their colleagues’ years of practice.⁸ Unfortunately, failing to report could subject patients to potentially dangerous consequences including injury and death, and expose the physician to consequences such as medical negligence lawsuits or discipline of his or her medical license.⁹ As such, reliance on self and third-party reporting is fallible, particularly as it relates to senior physicians.

Mandatory Retirement Age

Implementing a mandatory retirement age is an across-the-board solution, that may unnecessarily restrict certain physicians, but it is the most protective of patient safety, which is why it is an option proposed by patient safety advocates. Physicians are generally opposed to mandatory retirement, arguing it does not account for the value of years of clinical experience in guiding medical decision making and patient care, the wide variability in physician practices, and the varying effects of aging on each individual physician.¹⁰ The AMA Council on Medical Education has issued its opinion that physicians should be allowed to remain in practice if patient safety is not endangered and that, if needed, remediation should be a supportive, ongoing, and proactive process.¹¹ In addition, mandatory retirement age for physicians is unrealistic given the current shortage of physicians in the United States. It is estimated that “80% of physicians are overextended or are at capacity,” which creates the need for hospitals to retain physicians while simultaneously promoting patient safety.¹² According to the Association of American Medical Colleges, “the United States will face a shortage of between 42,600 and 121,300 physicians by 2030.”¹³ And, at the same time, “the number of Americans over the age of 65 will grow by 55 percent.”¹⁴ As such, imposition of a mandatory retirement age would exacerbate physician shortages.

Age-Based Screening Policies

Some hospitals have instituted age-based screening requirements for physicians over a certain age, and there is growing interest in such policies.¹⁵ Age-based policies require physicians over a certain age to undergo periodic physical and cognitive exams as a condition of renewing clinical privileges.¹⁶ While there are many approaches to age-based screening, these four elements are often included in screening policies: (1) a physical examination; (2) peer assessment; (3) other co-worker’s assessment; and (4) a cognitive assessment.¹⁷

Before engaging in age-based screening, health care entities must establish a clear policy governing assessment and credentialing of senior physicians. As with any policy, a health care organization should consult with its legal counsel to assess the policy and ensure compliance with current local and federal laws and regulations pertaining to the issue. California Public Protection & Physician Health, Inc. (“CPPPH”) guidelines for drafting such policies suggest that the policy should state clearly that it applies equally to all practitioners over a certain age, is based solely on age, regardless of performance, and that the policy is based on current literature on the subject.¹⁸ It should also specify, among other things: (1) the frequency of assessment; (2) who bears the cost; (3) that the physician must sign a release allowing evaluators’ reports to be shared with the medical staff; (4) that a committee will review the information and may recommend further evaluation; and (5) that information will remain confidential.¹⁹ The policy must explain clearly the rationale, how the age-based screening will work, and how it could impact clinical privileges.²⁰

Recognizing the significance of this issue, the AMA²¹ and the American College of Surgeons (“ACS”)²² support age-based screenings to evaluate physicians’ mental health and review of their treatment of patients. The AMA Council on Medical Education report states “formal guidelines on the timing and content of testing of competence may be appropriate and may head off a call for mandatory retirement ages or imposition of guidelines by others.”²³ ACS has recommended surgeons undergo voluntary and confidential baseline physical examination and visual testing by their personal physician for overall health assessment starting at age 65 to 70.²⁴ The ACS also recommends that surgeons voluntarily assess their neurocognitive functions using confidential online tools and reminds physicians of their professional obligation to self-disclose voluntarily any concerning and validated findings.²⁵ It would appear a consensus is growing amongst hospitals and organizations representing physicians that some age-based screening is necessary in the interest of patient safety.

Legal Considerations for Age-Based Policies

Although it is increasingly important for hospitals and medical staffs to address senior physician competency, it is estimated that “only 5 to 10 percent of U.S. hospitals mandate screening of late career physicians.”²⁶ Some hospitals cite concerns of litigation risk. The federal government and the majority of states have “enacted some form of prohibition against age discrimination in employment.”²⁷ Senior physicians negatively impacted by age-based policies could sue employers based on employment claims including Title VII, the federal Age Discrimination in Employment Act (the “ADEA”), and the Americans with Disabilities Act of 1990 (“ADA”). Understanding there are numerous exceptions to federal and state anti-discrimination laws, and that the facts of each case are unique, there is still appreciable risk to health care entities that impose mandatory retirement or age-based screening policies.

While courts have held hospitals liable under Title VII,²⁸ the ADEA²⁹and the ADA,³⁰ many hospitals have successfully defended ADEA claims by demonstrating that an age-based testing program is reasonably necessary for public safety. The United States Supreme Court explained: “The ADEA is not an unqualified prohibition on the use of age in employment decisions, but affords the employer a ‘bona fide occupational qualification’ defense.”³¹ Specifically, the ADEA provides that it is not a violation of the Act to take an action based on age when “age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age.”³² But this defense “has only limited scope and application” and “must be construed narrowly.”³³

In the context of age-related disability of physicians, a hospital can, under the law, consider a disability in determining whether an individual can safely perform job duties. In defending an age-based assessment policy, a health care entity must demonstrate that the policy is job related, based upon business necessity, and that screening is for employees in positions affecting public safety.³⁴ Courts have held that physicians and other providers may not seek protection of disability discrimination laws where the provider poses a direct threat to the health and safety of others that cannot be eliminated by reasonable accommodation.³⁵ Under the ADA, an age-based policy for assessing competence of senior physicians should describe the process for identifying a potential impairment and, if confirmed, a process for engaging with the physician to determine whether a reasonable accommodation can be made to enable the physician to continue to practice safely.

Conclusion

Age-based assessment of physician competence has long been controversial. Discussion largely centers on mandatory retirement age, compulsory assessment of senior physicians, and reliance on existing policies for self and third-party reporting of potential impairment. Absent guidelines or standards from professional or accrediting organizations, each entity must evaluate its specific culture and in cooperation with the medical staff, determine how to promote patient safety and competence of senior physicians. Health care entities should carefully consider, draft, and implement policies that will enable physicians to continue to practice for as long as they can do so safely.

1 AMN HEALTHCARE, 2016 SURVEY OF PHYSICIANS 55 AND OLDER 2 (2016).

2 Staff Writer, Competency and Retirement: Evaluating the Senior Physician, AM. MED. ASS’N., June 23, 2015.

3 See THE JOINT COMMISSION, COMPREHENSIVE ACCREDITATION MANUAL FOR HOSPITALS, MS.06.01.05(6) (2018).

4 AMA Council on Ethical and Judicial Affairs, American Medical Association Code of Medical Ethics’ Opinions on Physicians’ Health and Conduct, Opinion 9.0305 – Physician Health and Wellness, 13 AM. MED. ASS’N. J. ETHICS 700, 700 (2011).

5 Physician Responsibilities to Impaired Colleagues, AM. MED. ASS’N., (last visited Sept. 19, 2018).

6 43. U.S.C. Sec. 11133

7 Sandra G. Boodman, Aging Doctors Face Greater Scrutiny, KAISER HEALTH NEWS, Dec. 10, 2012,

8Id.

9Id.

10 See Thomas Walsh, Doctors are Getting Older – Should Policies Evolve to Require Mandatory Evaluations at a Certain Age?, MedPage Today, July 21, 2017

11 See AMERICAN, supra note 2 at 10.

12 See Merritt Hawkins Team, Survey of America’s Physicians: Practice Patterns and Perspectives, MERRIT HAWKINS, Sept. 22, 2017.

13 AAMC News, GME Funding and its Role in Addressing the Physician Shortage, ASS’N AM. MED. COLLEGES, May 29, 2018,

14 Mary Brophy Marcus, New Report Predicts “Troubling” Shortage of Doctors in the U.S., CBS NEWS, Mar. 20, 2017.

15Id.

16Id.

17 See CALIFORNIA, supra note 15 at 8-9.

18Id. at 6.

19Id.

20Id.

21 See Staff Writer, supra note 4.

22 American College of Surgeons, Statement on the Aging Surgeon (January 1, 2016), (last accessed on September 10, 2018)

23Id.

24 American College of Surgeons Board of Governors Physician Competency and Health Workgroup, Statement on the Aging Surgeon, AM. C. OF SURGEONS, Jan. 1, 2016.

25Id.

26 Weinacker, supra note 25.

27 4 EMPLOYMENT DISCRIMINATION COORDINATOR ANALYSIS OF STATE LAW § 1:14 (Sept. ed. 2018).

28 Michael R. Lowe, Stirring Muddled Waters: Are Physicians with Hospital Medical Staff Privileges Considered Employees under Title VII or the ADA Act When Alleging an Employment Discrimination Claim?, 1 DEPAUL J. HEALTH CARE L. 119, 121 (1996),

29 See CALIFORNIA, supra note 15 at 14.

30Id.

31 Hazen Paper Co. v. Biggins, 507 U.S. 604, 616 (1993) (citing 29 U.S.C. § 623(f)(1) (2012).

32 29 U.S.C. § 623(f)(1) (2012).

33 E.E.O.C. v. Exxon Mobil Corp., 560 F. App’x 282, 284 (5th Cir. 2014) (quoting W. Air Lines, Inc. v. Criswell, 472 U.S. 400, 412 (1985)).

34 See CALIFORNIA, supra note 15 at 15.

35Id.