Aging is inevitable. As the general population trends older, so do the physicians providing care across the United States. While data differs depending on the source, somewhere between one in three and one in four practicing physicians are over the age of 65, with this percentage rising even higher in many specialties. With this aging comes concerns that the cognitive and/or physical dexterity skills of those physicians may deteriorate over time. The resulting potential injury to public safety cause many healthcare organizations to consider policies addressing the aging of their physicians. However, there are many issues that must be considered in order to have a late career medical practitioner policy that can withstand scrutiny by state and federal courts and agencies.

While organizations look to promote patient safety and limit their liability and reputational harm that can result from any negligence in patient care, those goals must be balanced against the rights of the physician. There are many considerations for any such policy. These include what should be the beginning age for any such screening, what is the frequency for any assessments, what are the specific screenings that will be performed and by whom, and what are the consequences for refusing to undergo the assessments. These are just some of the determinations that must be made.

Analysis of what specific screenings will be conducted—such as whether to include substance abuse testing, the role (if any) of peer reviews, if there should be a physical exam, and which cognitive screenings are to be utilized—should focus on maintaining an individualized determination of the skills and health of each particular physician. This will assist in ensuring that no discrimination takes place in violation of the federal Age Discrimination in Employment Act and state and local laws prohibiting age discrimination. Such individualized assessment will also aid in defending against any potential disability discrimination claims that could arise when the organization learns of a previously undisclosed mental condition such as depression or a physical disability that may trigger an obligation to engage in an interactive process to determine if the organization can reasonably accommodate the physician’s condition.

While many jobs affecting public safety, such as air traffic controllers and airline pilots, have mandatory retirement ages, such policies for physicians remain largely untested in the courts despite the growing discussion in the healthcare community. The more narrowly tailored such a policy is, and the more personalized each screening can be, the greater the chances the policy will withstand legal scrutiny. Any organization contemplating such a policy should be cognizant of the legal risks and be prepared to articulate a nondiscriminatory reason based on objective fact rather than generalized perception for implementing a policy that requires physician screening based on patient safety concerns.

For more guidance on your potential or existing late career physician policy, please reach out to your Jackson Lewis attorney, Ms. Maddalena or any member of our Healthcare practice team.