It’s an inescapable reality: The medical workforce is getting older. Nearly 50% of physicians today are 55 or older1 according to the Association of American Medical Colleges’ 2022 Physician Specialty Data Report, and a rising subset are in their 70s and beyond. A 2021 report from the Federation of State Medical Boards found that in 2020, 12% of US licensed physicians were 70 or older (up from 9% in 2010), and the percentage of doctors aged 60-69 jumped from 16% to 19% in the same 11-year period2.
There are many benefits to be derived from an experienced workforce, and the value of practitioners who have seen it all is not to be understated. But there are challenges as well. Diminishing cognitive and motor skills are a reality for all of us as we age, but this deterioration can have a notable impact on physicians, and even more so on surgeons. Medical errors can result, and these may lead to malpractice claims – as well as cascading parallel issues.
Here’s a hypothetical example of how this might manifest itself in a hospital setting. A long-tenured physician in his 70s with a previously stellar reputation begins to exhibit a concerning pattern of patient care mistakes. These errors range from medication errors to missed diagnoses, resulting in patient harm. Despite interventions and additional training, the physician’s mistakes escalate. He is well-liked among staff and, where possible, staff have attempted to cover up his mistakes, but eventually, the hospital is left with no choice but to revoke the doctor’s credentials – and when the hospital discovers the staff has tried to hide the errors, several staff members are terminated. In explaining the terminations to local news and in blog posts, the hospital states the facts, emphasizing their commitment to patient care. Seeking to salvage his reputation, the physician files a defamation lawsuit, claiming that the public explanation by the hospital has unfairly damaged his professional standing. Concurrently, terminated staff file a wrongful termination suit and a plaintiff’s firm takes up the cases of those patients who had bad outcomes at the hands of this physician. Even if there is no notable medical negligence, the background narrative of the “cover-up” raises the values of what otherwise were benign claims.
In this hypothetical example, the long-tenured physician’s series of escalating patient care mistakes leads to coverage issues that span hospital professional liability, employment practices, directors & officers, and cyber. This is obviously a scenario that a hospital system would want to avoid at all costs. So how can healthcare organizations handle physicians who are losing skills that can lead to medical errors without running into issues from an employment practices perspective?
While it may be easy to make a blanket statement that all physicians over a certain age cannot perform surgeries, the possibility of age discrimination claims, as filed by the aging physician in the above scenario, must be considered. Late career practitioner policies that require testing for physicians that reach a particular age have fallen under legal scrutiny in recent years. In just one example, in February of 2020, the Equal Employment Opportunity Commission (EEOC) sued Yale New Haven Hospital, claiming its policy requiring medical examinations for practitioners older than 70 violated the Age Discrimination in Employment Act (ADEA) and Americans With Disabilities Act (ADA)3. This does not mean that such policies should not be implemented, but rather that they should be developed with care to ensure healthcare organizations are not opening themselves to one kind of liability in their efforts to reduce another.
Nonetheless, the need for a standard cognitive/physical testing/program for physicians after a certain age is clear. This is not a scenario that is unique to the medical profession; commercial airline pilots, FBI agents, National Park Rangers, air traffic controllers, and custom/border protection officials are among the many professionals with mandated retirement ages and/or health screenings. The nature of physicians’ work should put them in the same category.
To that end, the American Medical Association’s Council on Medical Education (CME) and Senior Physicians Section (SPS) have jointly developed guiding principles for screening and assessing the competency of the senior/late career physicians. While acknowledging that “older physicians remain an essential part of the physician workforce as they practice into their 70s and 80s”, these findings conclude that “as physicians age, a required cognitive evaluation combined with a confidential, anonymous feedback evaluation by peers and coworkers, including a focus on wellness and competence, would be beneficial to both the physicians and their patients.” 4
Ideally, these evaluations will provide aging practitioners and their employers with some level of confidence that there is no additional cause for concern about their competency. In the event that physicians are unable to meet cognitive or physical requirements, they should be provided with alternative employment opportunities that still provide fulfillment. Consultative and administrative roles are a great way to leverage physicians’ medical expertise.
Taking the step to evaluate physicians above a certain age is a big decision for a healthcare organization, but it is one that has the potential to prevent harm and, in the process, reduce claims. When competing Employment Practices Liability and Medical Malpractice risks are both present, healthcare organizations need to strike a careful balance between taking care of patients and avoiding age discrimination lawsuits. Ultimately, however, patient safety must be the priority. As always, Beazley is here to support our healthcare insureds with education and advice on this thorny but important issue.
2FSMB Census of Licensed Physicians in the United States, 2020
3Healthcare Employers Beware: Are Late Career Practitioner Policies Discriminatory? (Fisher Phillips)
The information set forth in this communication is intended as general risk management information. Beazley does not render legal services or advice. It should not be construed or relied upon as legal advice and is not intended as a substitute for consultation with counsel. Although reasonable care has been taken in preparing the information set forth in this communication, Beazley accepts no responsibility for any errors it may contain or for any losses allegedly attributable to this information.
Joseph Washington
Joseph Washington joined Beazley in November 2021 to develop a Hospital Professional Liability portfolio in the United States. Joseph has over 25 years of medical professional liability experience, specializing in providing this coverage for hospitals. He received his Bachelor of Science degree in Communications from Florida State University.
