Balancing Safety with Dignity When Evaluating Aging Practitioners

Policies mandating practical screening of older clinicians are legal, and they strike a fair balance of patient safety, organizational liability and respect for the provider.

ABSTRACT: Medical professionals can experience the physical and cognitive decline that affects all humans and sometimes will practice longer than they should. Existing peer review processes are inadequate, and mandatory retirement ages are unfair and unscientific. But policies mandating practical screening at a specific age are legal — and they strike a fair balance of patient safety, organizational liability and provider dignity.

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Medical practitioners — physicians, nurse practitioners, physician assistants, nurse anesthetists and others — train for many years and are skilled at caring for their patients. Most enjoy long careers in health care. All are subject, however, to the inexorable deterioration in physical and cognitive function that is part of the human condition as we age. There should be no shame in admitting this, as it is a fact of life, and also no hesitation to point out that such deterioration is highly variable among individuals.

Hospital policies that require assessing medical practitioners late in their careers are controversial. Such exclamations as “Who are they to tell me … ?” and “I am the best judge of my abilities” and “This is age discrimination” often are heard. On the other hand, hospitals must ensure practitioners are competent to perform the privileges granted to them. In the end, hospitals need to balance patient safety and institutional liability with the dignity of an experienced practitioner and that practitioner’s value to the hospital and society.

An unemotional examination of the evidence confirms that a hospital late-career practitioner policy best achieves this balance.

Are Older Practitioners a Problem?

There is overwhelming anecdotal evidence, and some published evidence, that older practitioners are a potential problem.

Hartz1 found that mortality rates of surgeons performing coronary artery bypass grafts increased with increasing years of practice. Older surgeons performing carotid endarterectomy had higher mortality rates than younger surgeons in O’Neill’s study.2 Laparoscopic inguinal herniorrhaphy led to higher hernia recurrence rates when performed by older surgeons compared to younger surgeons.3

Although Southern4 found that inpatients of physicians with more than 20 years of practice had higher risk of mortality, Epstein5 reported fewer maternal complications in patients of obstetricians practicing for more decades. In a systematic review of 62 published studies in this area, Choudhry6 reported that more than half of the studies suggested that physician performance for all outcomes declined with increased time since medical school graduation or increased age, and only one study showed improved performance.

Among larger studies, Tsugawa’s examination7 of 736,537 admissions managed by 18,854 hospitalist physicians found higher mortality in patients treated by older physicians, except those treating high volumes of patients. Waljee8 had similar conclusions in her study of 461,000 Medicare patients who underwent major surgery: Older surgeons did have higher operative mortality rates for pancreatectomy, coronary artery bypass grafts and carotid endarterectomy relative to younger surgeons, but the differences were small and limited to surgeons with low procedure volumes. Waljee concluded that “surgeon age is a relatively weak predictor of operative mortality in aggregate and certainly much worse for discriminating performance among individual surgeons.”

Those few individual practitioners who are well below normative standards, however, are the problem — a problem encountered by nearly every department chief, vice president of medical affairs and hospital president sometime during his or her tenure.

We sought anecdotes about worrisome older surgeons from members of the Society of Surgical Chairs and were told one “fell asleep taking down the internal mammary artery,” “had to organize an ‘intervention’ led by other senior/retired surgeons,” and “operating room nurses were in tears in my office, saying ‘you must stop him.’ ”

Exacerbating the potential problem is a lack of self-awareness that is common among, though not exclusive to, this small group of problematic senior practitioners. In a study of 359 physicians over a six-year period, Bieliauskas9 reported that although self-perceived cognitive changes play a role in the decision to retire, they are not related to objective measures of cognitive change and are not reliable in the decision to retire. Adding to the problem, cognitive impairment itself may lead to diminished self-awareness, a phenomenon termed anosognosia.10,11 A review of this subject in 2006 concluded “the preponderance of evidence suggests that physicians have a limited ability to accurately self-assess.”12

Medical Practitioners Are Human

Physicians, NPs, PAs and CRNAs face the inevitable decrement in physiologic functions, cognition and physical faculties that accompanies increasing age. Even elite athletes manifest decreasing maximal oxygen consumption, forced expiratory volume in one second and glomerular filtration rate, often decreasing at different rates in different individuals. Decrements in sensory function such as vision and hearing are expected by all.13 Similarly, we all experience varying declines in visual-spatial ability, inductive reasoning, verbal memory and other areas of cognition.14 Mani15 studied age-related decrements in performance on a continuous performance test, a well-known measure of attention, under “clear” and “noisy” trial conditions. Older age was associated with increased numbers of commission and false-alarm errors, supporting the concept of age-related inhibition problems, particularly under degraded or noisy conditions.

An older physician’s vast wealth of knowledge and experience is not sufficient to mitigate the inevitable change in cognition. In a review of the negative relationship between physician age and performance, Eva16 pointed out that crystallized intelligence (for example, accumulated knowledge) was better preserved than fluid intelligence (for example, negotiating a maze or overcoming first impressions by recognizing that alternatives are possible) and that habitual memory was better preserved than controlled analytic memory.

Greenfield’s group9 studied surgeons specifically, testing visual sustained attention that addresses stress tolerance, reaction time that addresses psychomotor abilities, and visual learning and memory that also addresses visual-spatial organization. Although surgeons performed better than the general population in psychomotor areas, there was, nevertheless, “considerable decline with age” in virtually every test.

Other arguments on both sides are chiefly speculative: In addition to increased experience, the older practitioner underwent more rigorous training than work-hour-limited recent trainees; on the other hand, keeping abreast of rapid changes in technology, guidelines and medical knowledge itself is problematic with increasing years beyond training.

Hospitals cannot ignore human physiology, published evidence and vast anecdotal evidence. Options for proactively dealing with this issue include a mandatory retirement age for practitioners, reliance on existing protocols, or mandatory assessment at a particular age (late-career practitioner policy).

Mandatory Retirement Is Not the Answer

Establishing a mandatory retirement age for medical practitioners seems to be a straightforward solution, but it would be inappropriate and unfair because of the vast variability in function among older individuals of a given age.

The Age Discrimination in Employment Act of 1967 outlawed forced retirement based on age; this is enforced by the Equal Employment Opportunity Commission, a division of the Department of Justice. Congress has approved fixed retirement ages for some professions that affect public safety: commercial airline pilot (65 years), Federal Bureau of Investigation agent (57), National Park Ranger (57), air traffic controller (56), lighthouse operator (55), nuclear material couriers (57), and custom/border protection officers (57). Mandatory retirement for practitioners does exist in some countries, but not in the United States.

Nor should there be a mandatory retirement age for physicians, NPs, PAs and CRNAs. There is impressive variability in the rate of cognitive and physical decline, variability that increases with age. Only seven of 108 senior surgeons performed significantly below younger surgeons on more than one of three tests administered by Drag.17 They concluded “age alone is not a sufficient predictor of cognitive performance.” There are septuagenarians who can play vigorous tennis and learn a new language and others that cannot walk to the mailbox or recite their address.

Existing Protocols Are Inadequate

Initial certification to be a medical practitioner is difficult, but recertification is relatively easy. Ongoing Professional Practice Evaluations, typically mandatory in hospitals every six months, are hospital-specific and highly variable. Our malpractice system is not constructed to detect nor capable of hobbling bad doctors.18 We are left with the scrutiny of our peers and, with respect to the older practitioner, many barriers to this exist.

In a 2005 study, Farber19 found that physicians would be more likely to report a colleague impaired because of substance abuse compared to one impaired by cognitive decline or psychological impairment. In a later study,20 17 percent of physicians reported that they had encountered an impaired colleague in the previous three years, but one-third of them had taken no action.

Senior practitioners are the most respected members of their community. They have been the teachers and mentors of their younger colleagues, some of whom may now be their chiefs. These younger colleagues may even become enablers21,22 by assigning senior residents and junior colleagues to assist. Often, the senior practitioners have brought fame to their hospitals and have been “rainmakers” for hospital volumes. Few medical staff bylaws contain provisions for dealing with an aging staff physician or advanced practice provider. Some changes in performance are hard to document, falling into a gray zone of worrisome-but-within-standard-practice. It often takes a patient death or a sentinel event to force action.

We must do better, or others will impose arbitrary rules such as mandatory retirement. We are a profession (from the Latin, “to speak forth”) and it is ethically imperative.23

• The American Medical Association Code of Ethics states that “[p]hysicians’ responsibilities to colleagues who are impaired by a condition that interferes with their ability to engage safely in professional activities include timely intervention to ensure these colleagues cease practicing and receive appropriate assistance from a physician health program.”24 Basic ethical principles underlie this, including the beneficence- and nonmaleficence-based duty to colleagues and patients to identify and assist impaired physicians in their recovery.25

• The American Nurses Association Code of Ethics states: “The nurse owes the same duties to self as to others, including responsibility to promote health and safety, preserve wholeness of character and integrity, maintain competence, and continue personal and professional growth.”26

• The Joint Commission, in Standard MS.06.01.05,27 requires that medical staff determine a practitioner’s “evidence of physical ability to perform the requested privilege” and “documentation regarding an applicant’s health status and his or her ability to practice should be confirmed.”

In many states, it is more difficult to maintain one’s driving privileges than one’s medical privileges.28 Illinois requires a road test at age 75. Ten states require a vision test at a specific age, although the age threshold for this varies from 40 to 80 years. In five states, older drivers must renew in person rather than by mail. In 15 states, they must renew at more frequent intervals than other drivers.

What can we do that balances patient safety and liability risk with the dignity of a committed practitioner and his or her value to society?

Late-Career Practitioner Policy

A number of hospitals around the country, including Lifebridge Health System’s Sinai Hospital and Northwest Hospital in Maryland, have established a late-career practitioner policy. Typical policies require every practitioner (physician, NP, PA, CRNA and others) of a certain age, upon applying for new or renewed privileges, to undergo some combination of a physical examination, a vision examination, a peer assessment, and/or a neurocognitive screening evaluation. (Sinai’s policy: see Table.)

These policies have not been without controversy. A group of vocal physicians at Stanford in 2012 successfully lobbied to eliminate the cognitive testing in their pioneering policy, but physical testing and peer review persist (age 74½).

Arkansas Children’s Hospital mandates peer assessment, physical examination and neurocognitive testing (age 74½). At age 72, practitioners at Cooper University Hospital in New Jersey undergo a history and physical plus a fitness evaluation (technical, cognitive, technical and, as needed, vision, hearing and stamina). University of Pittsburgh Medical Center in Pennsylvania assesses cognition, physical health and job performance (age 70), and Virtua Health in New Jersey assesses both physical and cognitive function (age 70). Other imminent policies include those at the University of Pennsylvania (age 70) and Temple University in Philadelphia, Pennsylvania.29

Hospitals and medical groups wishing to institute policy for late-career practitioners should have, optimally, a physician champion. That individual can present a proposal to the credentialing committee, then the medical executive committee, then the board of directors. It is reasonable to include advanced practice providers, such as nurse practitioners and physician assistants, because they do work similar to that of physicians, although, in our experience to date, few practice into their 70s. Nurses could be included for similar reasons, although, again, few work as clinical providers into their 70s. Policies can be modified over time — for example, changing the age threshold.

The policy at Sinai and Northwest hospitals passed unanimously at each committee. Age 75 was chosen arbitrarily as reasonably old enough to decrease controversy as well as make for a practical workload for our neuropsychologists. The hospital pays for the cognitive tests. Standard forms exist for the evaluations, and these completed forms are part of the credentialing or re-credentialing package presented to the credentials committee, then the medical executive committee, and then the board of directors. Members of each committee use this as they would any evidence relating to a practitioner’s ability to safely practice the privilege requested.

Legal Questions

Would such a policy break age discrimination laws? Although the paucity of health care related case law in this arena precludes a definitive answer, the federal age discrimination act allows employers to engage in apparent discriminatory practice when it is based on a “bona fide occupational qualification reasonably necessary to the normal operation of that particular enterprise.”30

Patient safety would be the focus of this exception, if tested, with the hospital required to show there is published evidence of potential decline with increasing age and that individualized testing of every practitioner would be highly impractical and/or costly. This is an underlying principle of any screening test: that it is administered not to everyone but to the population in which it will be high-yield. A 2015 white paper produced by California Public Protection and Physician Health examines these legal issues more deeply.31

Physicians with staff privileges but no employment contract generally do not have the protection of these anti-discrimination laws. A recent legal review concluded that “the use of age-based screening in the review of a physician’s clinical privileges by a health care facility medical staff is generally permitted.”32

CONCLUSION

Medical practitioners are expert at caring for patients, but a rare individual, affected by the inexorable decline in physical and cognitive function that is the human condition, will practice longer than he or she should. Evidence shows that our existing peer review processes are inadequate to deal with this issue.

Mandatory retirement at a certain age is unfair and unscientific, given that the variability in decline among individuals actually increases with increasing age. It is not discriminatory, however, to mandate a practical screening evaluation at a given age. A late-career practitioner policy balances patient safety and hospital liability with the dignity of the committed practitioner and his or her value to the hospital and society.

Mark R. Katlic, MD, MMM, FACS, is chairman of the surgery department and surgeon-in-chief for Sinai Hospital, and director of the Sinai Center for Geriatric Surgery, in Baltimore, Maryland.

JoAnn Coleman, DNP, ACNP-BC, is the clinical program coordinator of the Sinai Center for Geriatric Surgery in Baltimore, Maryland.

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