We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful. Finally, these articles are not intended as specific legal advice. For that, please consult with attorney licensed to practice in your state.

“When I finished my nephrology fellowship I was really honored to be asked to join my mentor’s practice. We’ve worked together for over 15 years now and are partners with a third physician. I still respect him deeply. The problem is now he is in his late 70’s, and he is beginning to slip. I’ve seen him standing in the hallway, unable to remember which examination room to go into, and our admin told me that she has to prompt him when he sees a patient. One of the transplant surgeons just told me that my partner was “spacey” when he called him for a consult.  Worst of all, I’ve noticed him smelling like urine.  When I mentioned it, he said that he spilled a patient’s sample – but then it happened again.  I’m sure that he will not consider retiring – he loves being a doctor and after losing his wife last year-  the practice is his life. My other partner does not want to get involved because she is afraid of disrupting our business.  She says that we should just “pick up after him” until things get bad enough so that he will know that he has to quit. What should I do?”

With people living longer and expecting to stay active longer, about a quarter of American physicians still in practice are now over 65.  The complications of aging are increasingly felt in the profession.

Mental and physical deficits are often gradual. And established older doctors are generally respected by staff and patients. Their fellow physicians are their long-time friends and empathize with them and don’t want to imagine that they are failing.  Excuses are made for what would be concerning behavior in a younger practitioner until a patient is harmed.

The older physician may be, like the 81 year old doctor who told the reporter interviewing him he requires his son, with whom he practices, to keep an eye on him and admits that he forgets patients’ names but that “If I made a mistake, I’d be the first one to quit here.” This doctor fails to recognize that those mistakes have already begun.

Against that background, no systematic evaluation process for doctors is institutionalized as required for another profession charged with public safety, commercial airline pilots. Such pilots must undergo bi-yearly physical and mental examinations from age 40 onward and must retire at 65 irrespective of their actual skill level.

State licensure also has no role in evaluating aging physicians because no competency exams are required after initial admittance, regardless of the doctor’s age.

To counter the absence of a systematic approach to evaluating older physicians there is now a move to objective testing.

In June, 2015 the AMA, which cannot issue binding requirements but often influences legislatures as authoritative, agreed to develop assessment guidelines, including an evaluation of physical and mental health and a review of doctors’ treatment of patients. However, the AMA did not specify who would do the assessing or how often it would take place. Its report only says that “perhaps periodic reevaluation after a certain age such as 70, when incidence of declines is known to increase, may be appropriate.”

Supporters of this project point out the rationale for taking action arises from a concern that a mandatory physician retirement age could be imposed. This reflects the AMA position that “physicians should be allowed to remain in practice as long as patient safety is not endangered.”

Detractors, however, warn that looking at age-related physical and mental changes in a vacuum to exclude a physician from practice may ignore evidence that fails to link these changes to impaired patient care.

Hospitals are ting action individually, adding additional assessments, including personal health of older physicians, to the periodic review that the Joint Commission requires U.S. hospitals to do of all their physicians’ performance. For example, Stanford requires a performance evaluation and physical exam every two years of its physicians aged 75 or older. The University of Virginia screens physicians and some other medical staff aged 70 or older with physical and cognitive exams every two years. Older physicians at a Salt Lake City hospital are asked to take mental assessment tests given to airline pilots – and such testing may be irrelevant in testing physicians.

In a private practice, however, the burden of dealing with a physician who is becoming incompetent as a practitioner due to age will fall on his colleagues. Those colleagues may face professional responsibilities and potential liability if they fail to act.

Let’s take a look at where you would stand if, like the questioner, an older doctor in your practice seems to be failing.

  1. State requirements

The first issue to consider is whether, under your state’s licensure regulations, you are a mandated reporter to your state’s Medical Board.

The law in Texas is a good example.

Physicians there are obligated to report if they believe that a fellow doctor “poses a continuing threat to the public welfare through the practice of medicine.” 

There is no distinction between a doctor who is impaired by substance abuse or emotional issues and one who is physically or mentally impaired by age – the only predicate is patient safety.

This is not as draconian as it sounds because the physician who suspects the problem can first take steps to remediate it. This follows the paradigm that a doctor with an addiction problem can be offered the choice of rehab or counseling rather than a report.

For example, the questioner here is faced with some telltale points – the older doctor is not just showing cognitive impairment but is also becoming incontinent. He may have a treatable condition such as Normal Pressure Hydrocephalus or Parkinson’s disease. He was also recently widowed and any organic mental issues may be exacerbated by depression or even by just not eating properly or getting enough sleep now.

His younger partner can address those issues with him. And if he agrees to undergo diagnostic evaluation and treatment for any conditions found, then there is no need to report him as long as he refrains from practicing until treatment has adequately worked.

If the younger doctor were not his partner but just another staff physician noting these problems then he would bring the matter to a practice committee within the hospital for the same purpose. The hospital would have the option to refer to a Physician Health Committee.

The questioner’s other partner’s belief that they could just cover for their failing colleague is not, however, an option. That strategy would actually be a basis for discipline if it later came to light that she was aware of the situation and essentially covered it up.

In this case, the aging physician was the questioner’s colleague –  but before leaving this section we should look at the reporting obligations of a treating physician: what do you do if in the course of caring for a physician patient you learn of his likely inability to continue to practice due to age-related issues?

The answer is that your options parallel those in the case we addressed: confrontation about the issue and a promise of self-rectification (effective treatment or voluntary surrender of licensure) that you would then follow-up on, or referral to the relevant authorities for further action.

  1. Fiduciary obligations

The questioner in this case, as a partner, was obligated to protect the interests of the practice and would be liable for damages to the practice if he failed to do so…and his other partner, who was so anxious to not rock the boat, would be the first one racing to a lawyer to sue her colleague if the older doctor seriously harmed a patient and so caused the practice serious financial harm.

The proper first approach is a partnership meeting including the older doctor to directly address – on the record – the concerns the other partners have.  If the older doctor does not agree to a plan of remediation then a vote will have to be taken against him under the partnership rules.

However, if he is removed he would still be entitled to any appropriate share that his vested status as a partner would otherwise guarantee him were he to leave voluntarily. While such dissolution of the partnership relationship would be “for cause” it should not proceed punitively because the impairment is involuntary.

As the population ages, all medical partnerships should include in their partnership agreements a process for dealing with physician impairment that makes age-related conditions a specified issue as a bulwark against an age-discrimination claim (see below). An example would be “Partners and employees will be subject to review for impairment due to matters including, but not limited to, substance abuse, and other psychological limitations, and age-related physical and/or mental conditions.”

  1. Negligence liability

Within a group that shares liability for malpractice, as a partnership does, liability for the negligent acts of an age-impaired physician will run to the partnership and to all of the partners.

The group can also be liable for negligent retention of the impaired physician.

A physician in the group who was aware of the problem and did not at least report it within the group can be personally liable both to the group and to the plaintiff.

A treating physician should also be concerned about liability if the aging physician he has identified as impaired continues to practice and harms a patient.  Although such doctors do not have a personal duty of care to the patients of the aging physician under classical negligence law, courts are increasingly finding duties to third parties likely to be injured by someone the physician was in a position to restrain but negligently failed to do so. A case against them can also be grounded in the doctrine of negligence per se if they violated a statute (the reporting mandate) because that statute is designed to prevent just the type of harm the plaintiff suffered (being injured by an impaired physician).

  1. Retaliatory actions by the aging physician

Groups with an aging physician showing significant impairment are often concerned about a retaliatory action based on the Age Discrimination Employment Act (ADEA) or the Americans with Disabilities Act (ADA) if they act to review, limit or fire that physician.

These concerns are, however, based on erroneous understandings of these laws.

  • ADEA

The ADEA forbids discrimination in any term of the employment based on age itself. But in the situation of the physician whose care of patients is compromised by age-related physical or mental impairment the issue is the impairment, not the age.

This also takes it outside of the fact that an employment policy that applies to everyone regardless of age can still be illegal if it has a negative impact on older employees and if that negative impact is not based on a reasonable factor other than age.  In the situation such as the questioner faced, the reasonable factor is the impaired ability to care for patients, albeit that in this case it incidentally arose from age.

State anti-discrimination laws will be expected to follow these paradigms as well.

  • ADA

Practices with under 15 employees do not come under the ADA.

Those practices that do come under ADA are required to provide reasonable accommodations to the disabled employee rather than firing him based on disability. That employee must, however, still be able to perform the essential functions of the job.

Therefore, a physician whose mobility is limited due to age-related changes but who can otherwise still treat patients effectively could have a claim under the ADA if he was fired rather than the practice installing the reasonable accommodation of a ramp for his walker. But a physician who can no longer safely care for patients due to developing dementia could not successfully sue under ADA because although intellectual impairment is a recognized disability, the nature of his condition is such that he can no longer carry out the very task that he is there for.

In summary: Physician impairment due to age-related conditions will be an increasing problem for practices in the future. A doctor who notices such issues in a colleague should consider his own responsibilities under their state’s licensing law, his fiduciary duty to the practice and his risk of being brought into a negligence claim. Since many causes of cognitive impairment are treatable, the aging doctor should first be approached about relevant issues and a plan of remediation offered that may include diagnostic testing.  The aging doctor should, however, have his practice restricted during the period of evaluation. The ADEA and ADA are generally inapplicable but complete records of the process should be maintained to demonstrate that any action taken was not discriminatory.

Medical Justice notes: [Telling a colleague he is not competent to practice can be gut wrenching. But, it’s the right thing to do for the doctor. It’s the right thing to do for the patients. If the doctor has a treatable condition, you will be thanked.]

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