Should Doctors Be Tested for Competence at Age 65?

Leigh Page

Disclosures

October 28, 2015

In This Article

What About Age Discrimination?

Several federal laws, including the Age Discrimination in Employment Act, protect older physicians against adverse actions, even when they're just on staff and aren't direct employees of the hospital.

Several attorneys who have studied the matter say age-based testing programs can comply with federal laws. Edwards Wildman Palmer, a large Boston law firm, reports[16] on its website that the program must demonstrate that it's "reasonably necessary" for public safety and that it would be impractical to test every doctor on staff individually.

However, the risk of being charged with age-based discrimination by the Equal Employment Opportunity Commission (EEOC) in these cases is real.

Consider the case of Warren Guntheroth, MD, a cardiologist at the University of Washington (UW) Medical School, as reported[17] by the Seattle Times.

In 2006, when Dr Guntheroth was 79, the medical center started to investigate his skills after he was accused of becoming isolated from other doctors, writing inappropriately short assessments of patients, and misreading cardiology tests.

Three outside doctors appointed to assess Dr Guntheroth concluded that only his clinical documentation was poor. As a result, UW decided to restrict his privileges. His patient records were monitored, he was limited on where he could practice, and he was required to attend sessions on cardiology topics.

Dr Guntheroth claimed he was being retaliated against for publicly criticizing the medical school on several policy issues, and he reported the medical school to the EEOC. UW insisted that it wasn't engaging in age discrimination because none of the 14 other on-staff physicians older than 70 were under review.

In 2008, the EEOC concluded that Dr Guntheroth had not "engaged in misconduct which would warrant the adverse treatment" he received, and there was "reasonable cause" to believe that he'd been discriminated against. Nevertheless, the EEOC didn't take any further action. To force UW to revoke its action against Dr Guntheroth, the EEOC would have had to sue the university, and the agency rarely brings lawsuits, the Times reported.

Conclusion

The AMA's ability to produce guidelines on age-based testing will depend to some extent on whether other physician groups endorse the policy, which they have balked at doing so far. Yet even if the AMA comes up with guidelines, it will be up to each hospital to adopt them, unless the Joint Commission establishes requirements.

The policies themselves will need to weigh patient safety against the ability of physicians to continue practicing. Speaking on behalf of surgeons, Dr Katlic says, "We need to balance patient safety and liability risk with respecting the dignity of surgeons and their value to society."

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