Feds Sue Yale Hospital for Age Discrimination of Older Clinicians

Ken Terry

February 21, 2020

Yale New Haven Hospital, the teaching hospital of the Yale School of Medicine, is accused of discriminating against older physicians in a lawsuit filed February 11 by the US Equal Opportunity Commission (EEOC).

According to the EEOC's filing in the US District Court for Connecticut, the hospital's "late career practitioner policy" requires any individual aged 70 and older who applies for or seeks to renew staff privileges to take neuropsychological and eye examinations.

Individuals and employees younger than age 70 are not subject to these requirements, the EEOC said.

Because those subject to this policy are required to undergo testing solely because of their age, the policy violates the Age Discrimination in Employment Act (ADEA), the suit said.

In addition, the EEOC charged, the policy violates the Americans with Disabilities Act (ADA). Under the ADA, employers are barred from subjecting employees to medical examinations that are not job-related and consistent with business necessity.

The EEOC seeks compensatory and punitive damages and injunctive relief, including the elimination of the late career practitioner policy.

"While Yale New Haven Hospital may claim its policy is well-intentioned, it violates anti-discrimination laws," said Jeffrey Burstein, regional attorney for the EEOC's New York District Office, in a news release. "There are many other non-discriminatory methods already in place to ensure the competence of all of its physicians and other health care providers, regardless of age."

Mark D'Antonio, a spokesman for Yale New Haven Hospital, provided this statement to Medscape Medical News: "Yale New Haven Hospital's late career practitioner policy is designed to protect our patients from potential harm while including safeguards to ensure that our physicians are treated fairly. The policy is modeled on similar standards in other industries and we are confident that no discrimination has occurred and will vigorously defend ourselves in this matter."

Physician Complaint

The EEOC's suit was brought after the commission received a complaint from Irwin Nash, MD, a pathologist and internist at Yale New Haven Hospital and an associate professor of clinical laboratory medicine at Yale. While Nash passed the required exams, he is cited in the suit as one of the "aggrieved employees and individuals who were adversely affected" by the hospital's policy.

According to the EEOC, Yale New Haven Hospital established this policy in March 2016. Through April of last year, the suit said, the hospital had applied the policy to 145 individuals, all aged 70 and older. Of these, 14 were listed as "borderline deficient," and one was listed as "deficient." Seven individuals failed either or both of the exams; five refused testing and either resigned or changed their status.

It's unclear how many hospitals require testing of older physicians. Louise B. Andrew, MD, JD, an emergency-medicine specialist and physician wellness advisor who has served in multiple roles in the American College of Emergency Physicians (ACEP), told Medscape Medical News that a growing number of hospitals are screening elderly practitioners. However, she couldn't say how many institutions require older doctors to prove their competence to maintain staff privileges.

In a 2018 article published in Health Matrix: The Journal of Law-Medicine titled Screening Older Physicians for Cognitive Impairment: Justifiable or Discriminatory?, Ilene Moore, MD, JD, an assistant professor at Vanderbilt University School of Medicine, stated that "many commentators and healthcare organizations…have urged, or actually instituted, cognitive 'screening' for older physicians as a means to ensure patient safety."

But, Moore writes, "Singling out all older physicians for cognitive testing is empirically unjustified and legally prohibited."

However widespread this approach may be, Andrew agrees that age-based screening can violate the anti-discrimination laws.

"I think we should be law-abiding and not discriminate against people without cause," she said. "If there is cause, then absolutely we have the right to, and the need to, intervene. But the law says you can't do it just because people are a certain age."

Changing Times

When Andrew was training at Johns Hopkins Hospital in Baltimore many years ago, she noted, "It was not uncommon for there to be incompetent physicians on medical staffs in hospitals."

At Johns Hopkins, she recalled, "Everybody knew that some senior faculty members there were senile. Out of respect, you kept them around and honored the wisdom they'd accumulated, but you took everything with a grain of salt. You didn't take anything for granted. So some institutions were covering up for less competent physicians."

But over the past 15 years or so, she said, the approach from hospitals has changed. "By and large, doctors, nurses and other hospital employees are very alert to any signs that are not normal, and they feel free to report these signs to the hospital administration.

"Every hospital has a well-being committee, which does peer review on people who seem to be having difficulties, helping them if they can and redirecting them if they can't. And peer review is much more organized. You don't get away with providing substandard care for long," she said.

As a result, Andrew doesn't see much need for screening of older physicians in hospitals. "But they're risk averse, they're afraid they're going to get sued if there's a problem and somebody says, 'Oh yeah, I saw his hands trembling before surgery.' "

In Moore's article, she notes that the argument for cognitive screening of older physicians "is rooted in the perception that aging physicians threaten patient safety." But she writes that "the evidence does not support the need for across-the-board age-based cognitive screening of late-career physicians."

Moore also points out that the US healthcare system relies heavily on aging physicians. Currently, she writes, about 1 out of 8 practicing physicians — totaling 111,000 doctors — is older than age 65.

Moreover, physicians are retiring later than they used to. This is a desirable trend, she writes, because it can help ameliorate the physician shortage that the US faces over the next decade.

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