Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

The Bible provides sage advice on honoring the elderly.

Wisdom is with the aged, and understanding in length of days.

Do not rebuke an older man, but encourage him as you would a father, younger men as brothers.

And, of course, honor your father and mother.

Not sure Yale New Haven Hospital got the memo.

Some background.

In January of this year, JAMA published an article – Cognitive Testing of Older Physicians Prior to Recredentialing. Yale New Haven Hospital’s Medical Executive Committee required all staff physicians aged 70 or older to take a battery of neuropsychological examinations prior to recredentialing. The screening battery assessed cognitive function “relevant to clinical practice.”

A cognitive screening battery of tests was developed and designed to balance brevity with broad coverage of abilities relevant to clinical practice. The instrument was constructed to account for the cognitive decline and neurodegeneration commonly associated with aging. The precise battery of tests is confidential so that the clinicians cannot prepare for the test. The screening battery used consisted of 16 brief tests including rudimentary information processing (2 tests), visual scanning and psychomotor efficiency (2 tests), processing speed and accuracy under decision load (1 test), concentration and working memory (1 test), visual analysis and reasoning (2 tests), verbal fluency (2 tests), memory (1 visual test and 1 verbal test), “prefrontal” self-regulation (1 test), and executive functioning (3 tests). Executive functions relate to self-regulation, including foresight and flexibly executing an organized strategy in response to situational demands. Core abilities include inhibition of maladaptive automatic responses, planned initiation, mental tracking, and set-switching; eg, adaptively modifying behavior in response to changing circumstances or performance inadequacies. These qualities assess the ability of clinicians to think, monitor, and adapt. The time of testing is extended within the applicable domain to enhance data reliability and facilitate interpretation when an individual has difficulty with particular tests. Time to completion varies from 50 minutes to 90 minutes.

So, the methods were secret. And no open book here.

How did the doctors perform?

From October 2016 through January 2019, 141 clinicians aged 70 or older requested reappointment. The eldest was 92 years old.

57% completed the screening test and moved on to the rest of credentialing. Hurray!

24% had “minor abnormalities” and were re-credentialed, but they were scheduled for re-screening in one year. We have our eye on you.

Of the 141 clinicians tested, 19 had significant deficits, including 12 who discontinued independent practice based on the screening assessment alone and 7 who underwent further testing. Three of those 7 subsequently stopped practicing. Seven additional clinicians had enough deficits on the initial screening that they were referred for further testing, and 3 of this group also left clinical practice. Altogether, the report suggests that in the absence of an ongoing screening program, approximately 13% of physicians and other clinicians older than 70 years should not be practicing independently.

So, about 1 in 4 underwent more substantive testing. And, as stated above, 13% were counseled about next steps – likely a euphemism for showing them the door or practicing with a proctor.

In Yale’s case, it was not clear that any of these physicians had problems in the clinical arena prior to the screening tests. In other words, they may have been performing at a level where no one noticed any particular cognitive deficits. Or if anyone did notice, no one spoke up.

The Equal Opportunity Employment Commission didn’t like what they saw, and on February 11, 2020, published a press release.

EEOC Sues Yale New Haven Hospital for Age and Disability Discrimination

Hospital Unlawfully Subjected Only Physicians Over 70 to Neuropsychological and Eye Exams, Federal Agency Charges.

The EEOC said that those subject to the policy are required to be tested solely because of their age, without any suspicion that their neuropsychological ability may have declined. By subjecting only these older hospital applicants and employees to the policy, the hospital violates the Age Discrimination in Employment Act (ADEA), the EEOC said.

That policy also violates the Americans with Disabilities Act (ADA), the EEOC also charged, specifically its prohibition against subjecting employees to medical examinations that are not job-related and consistent with business necessity. 

The EEOC filed suit in U.S. District Court for the District of Connecticut (EEOC v. Yale New Haven Hospital, Civil Action No. 3:20-cv-00187), after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks compensatory and punitive damages and injunctive relief, which includes the elimination of the 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. “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.”

Our medical workforce is peppered with seasoned practitioners. Here are the stats:

Fully 43% of all US physicians are aged 55 years or older, including 61% of psychiatrists, 52% of radiologists, 46% of general surgeons, and 44%of internists. Moreover, approximately 15% of practicing US physicians are older than 65 years, tripling from 23,000 in 1980 to 73,000 in 2012-2016. Every year, 20,000 more US physicians turn 65 years of age, and, even though half retire by age 65, many continue practicing for years and decades more. Indeed, US policy makers are counting on these older physicians to do so to help mitigate the nation’s growing physician shortage. Currently, an estimated 50 million to 70 million US office visits and 11 million to 20 million hospitalizations each year are overseen by physicians older than 65 years.

Screening exams for our elder physicians have not been met with uniform approval.

The Stanford faculty council rejected the plan to use cognitive testing, resulting in a revised approach using peer review. Opposition by the Utah Medical Association led to a Utah state law banning age-based physician screening. Similar challenges have occurred when professional organizations have entered the discussion. In 2015, the American Medical Association (AMA) Council on Medical Education issued a report calling for the development of guidelines and standards for assessing competency in aging physicians. The report was adopted by the AMA House of Delegates, which ultimately requested further study.

Further study is usually the operational strategy for killing an idea.

How do our elder physicians perform?

Data regarding physician age and patient outcomes in clinical practice are both reassuring and alarming. In a systematic review of the relationship between health care quality and years in practice, 15 (24%) of 62 studies (that included more than 33,000 physicians) reported comparable or better performance of older compared with younger physicians, but 32 studies (52%) found that late-career clinicians had reduced clinical knowledge, less adherence to treatment guidelines, and lower scores on process quality measures for diagnosis, screening, and prevention. In a recent analysis of 736,537 hospitalizations of Medicare beneficiaries managed by 18,854 hospitalist physicians (median physician age, 41 years), there was no association between physician age and 30-day patient mortality with care provided by older (≥60 years) physicians with high-volume practices (≥201 admissions per year; one-third of aging practitioners), but higher patient mortality was observed with care provided by older physicians with low volume practices.

Maybe the better variable to assess is practice volume. Practice volume may be a better prognosticator on outcomes than age.

Yale is not an outlier. Multiple institutions have implemented cognitive screening tests; the sole qualifying criterion being age over 70. These institutions will likely be hearing from the EEOC soon. The EEOC is saying if you want to do these screening tests, do them on everyone. Or have a reasonable suspicion that a particular individual is likely to have a cognitive deficit.

I wonder if this will be as well received as Maintenance of Certification for Boards.

What do you think? Let us know in the comments below.

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Jeffrey Segal, MD, JD, FACS

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.