MD Contests Mandatory Cognitive Tests for Older Docs

Should older physicians be forced to undergo cognitive tests to stay on the job? One 84-year-old ophthalmologist is suing her Michigan employer to stop the practice.

Lylas G. Mogk, MD, recently sued Henry Ford Health and Henry Ford Medical Group in federal court, alleging that the mandatory cognitive test violates the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act, and two Michigan laws.

Mogk's lawsuit follows a widely watched 2020 case in which the US Equal Employment Opportunity Commission (EEOC) sued Yale New Haven Hospital, the teaching hospital of the Yale School of Medicine, for age discrimination. According to the lawsuit, the hospital illegally required neuropsychological and eye examinations of physicians aged 70 or older who sought to gain or renew staff privileges.

According to the lawsuit, Mogk is a member of Henry Ford Medical Group, which in 2017 required all members aged 70 and older to undergo cognitive screening tests. The tests would be repeated every 5 years thereafter, the lawsuit said, and anyone who refused would have to resign or be fired.

Mogk completed the screening, although no information about the results or outcome was mentioned in the lawsuit. It's not clear whether Henry Ford's cognitive test mandate remains in place; a spokesperson for Henry Ford Health and attorneys for Mogk declined to comment.

The number of practicing physicians in their 70s and beyond is rising. A 2021 report found that 12% of US licensed physicians in 2020 were least 70 years old, up from 9% in 2010 and an increase from 75,627 to 120,510. The percentage of doctors aged 60-69 grew to 19% from 16% in 2010.

The number of health systems requiring testing of older physicians isn't known, although various reports suggest at least a dozen have had mandates.

UC San Diego offers a physical and mental screening program that health organizations can use to evaluate "late-career physicians," and a 2021 report noted that "Nebraska's Children's Hospital requires physicians aged 70 years and older to undergo an assessment by several peers, a complete physical, and unspecified cognitive screening." Another system, Hartford HealthCare, mandated an annual reappointment process for clinicians aged 70 or older, requiring them to undergo various exams.

There's evidence that physician performance declines with age. However, age-based cognitive testing can run afoul of federal and state laws against age discrimination, said Sharona Hoffman, JD, professor of law and bioethics at Case Western Reserve University School of Law, in an interview.

Federal law prohibits age-related restrictions on employment but allows exceptions in areas like public safety, said Hoffman, who's written about age discrimination and testing requirements. Pilots, law enforcement officers, firefighters, and air controllers, for example, can be forced to retire at specific ages.

It's not clear how many physicians took the cognitive tests required by Henry Ford Medical Group.

However, details are available about the policy at Yale New Haven Hospital: According to the EEOC lawsuit, from 2016 to 2019, 145 physicians aged 70 or older took the mandatory test. Of those, seven individuals failed either or both of the exams, 14 were listed as "borderline deficient," and one was listed as "deficient." Another five refused testing and either resigned or changed their status. The EEOC case against the hospital is still pending.

"You can make an argument that healthcare is like a public safety job because people put their lives in the hands of doctors," Hoffman said.

In defending mandatory cognitive tests, she said, healthcare systems could say, "it's not really discrimination; we're not forcing them to retire, we're not limiting their work in any way. We're just doing testing to make sure they perform competently, and the ADA allows us to conduct testing that is job-related."

Indeed, a Yale New Haven Hospital spokesman made an argument along these lines in a statement to Medscape Medical News regarding the 2020 lawsuit: The "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."

However, Hoffman herself doesn't buy these arguments. Requiring tests only for older physicians does appear to be discrimination based on age, she said. As an alternative, "employers can do close supervision of people. As soon as there are performance problems or patient complaints, you need to see a doctor or get testing done."

Another option is to mandate tests at specific ages via licensing boards. "I don't think that would be legally problematic," Hoffman said.

What else can be done to protect patients from clinicians whose skills have significantly declined as they've aged? A 2021 report in Neurology Clinical Practice notes that there are disadvantages to several strategies.

One common approach, waiting to evaluate a clinician until an error occurs, can lead to patient harm, the report's authors write. Relying on reporting by peers is problematic because "physicians have been very resistant to reporting colleagues who are impaired" and the "medical apprenticeship model discourages physicians from reporting on senior colleagues."

Physician self-assessment is yet another option, but "loss of insight may be a component of an individual's impairment," the authors write.

So what's the best solution? The authors recommend "a relatively brief cognitive screening followed by more extensive testing for the most impaired individuals." This approach, they write, "appears most reliable in confidentially identifying truly impaired physicians while minimizing the chance of a falsely flagging unimpaired individuals. This strategy allows aging physicians to continue working while safeguarding both their reputations and their patients' health."

Hoffman has no disclosures.

Randy Dotinga is a freelance medical writer and board member of the Association of Health Care Journalists.

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84-Year-Old MD Contests Employer's Mandatory Cognitive Tests for Older Docs

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