1. The Aging Physician: Balancing Safety, Dignity, and Compliance
Medical Staff, Credentialing, and Peer Review Practice Group Annual Luncheon
At 2013 AHLA Annual Meeting, San Diego, CA
July 2, 2013  12:30-1:45 pm Presenters:
Jon Burroughs, MD, MBA, FACHE, FACPE
The Burroughs healthcare Consulting Network, Inc., Glen, NH
Maria Greco Danaher, Esq.
Ogletree Deakins Nash & Stewart, PC, Pittsburgh, PA
James B. Hogan, Esq.
Hall Render Killian Health & Lyman, PC, Indianapolis, IN

2. The Aging Physician: A growing issue due to . . .
1/3rd of physicians in practice are age 55+
12% of physicians in practice are age 65+
52% of practitioners report decreased performance with increasing years in practice for all outcomes assessed
1/3rd of physicians will experience an impairment that undermines their ability to practice safely
(Source: Annals of Internal Medicine, 2005)

3. Is there scientific evidence that there is cognitive and motor impairment with age?
According to the Insurance Institute for Highway Safety:
The number of fatal accidents rise significantly over the driver’s age of 65
Older drivers demonstrate a higher level of visual, cognitive, and physical impairment
Douglas Powell, “Profiles in Cognitive Aging” (1994) compared 1002 physicians and 582 non-physicians from age 25 to 92 by measuring physiologic and cognitive functions at each age

6. What is a reasonable process to address this issue?
Aging Physician Policy and Procedure:
1. Set an age at which the appointment cycle shortens (e.g., 2 years to 1 year)
2. Require a “fitness for work” evaluation (not a physical exam)
3. Work with the medical staff to voluntarily adjust the scope of privileges over time to address objective findings
4. Do NOT become overly proscriptive!

7. Legal Issues: ADEA Age Discrimination in Employment Act of 1967:
It is illegal to discriminate against men and women aged 40 years and older by employers, unions, employment agencies, state and local governments, and the federal government.
However, an employer is not liable if an age requirement (or other job requirement) is a bona fide occupational qualification (BFOQ).

8. Bona Fide Occupational Qualification (BFOQ):
Eligibility criteria that is necessary to perform the essential functions of a job as in:
1. Requiring pilots, military personnel, and air traffic controllers to retire at a specified age due to the risks associated with the job
2. Restricting applicants by sex or age due to job requirements (e.g. models, rest room attendants, dancers, etc.)
BFOQs are defined and interpreted through legal precedent (stare decisis)

9. Legal Issues: ADA Americans with Disabilities Act of 1990:
Prohibits discrimination against individuals with disabilities in all aspects of employee-employer transactions.
Enables employee to ask employer for a “reasonable accommodation” that the organization is not obligated to provide if the costs of the accommodation are high or if the organization would be asked to assume an unreasonable risk.

10. Case Study #1
MEC receives reports from the OR Manager that a 71 year old surgeon has:
Longer OR times than normal
Seems unsure of herself at times
Utilizes older techniques that are no longer considered “standard”
How should the MEC proceed and if the surgeon is employed, who should address these issues?

11. Case Study #2
The MEC would like to amend the MS bylaws so that at age 70:
All practitioners must submit to a mandatory physical exam and be reappointed annually
At age 80:
All practitioners must automatically relinquish inpatient privileges and become a member of the honorary/emeritus staff
What do you think?

12. Case Study #3
A 68 year old self-employed neurosurgeon recently developed a tremor that could not be controlled with medication. A “fitness for work” evaluation recommended that the surgeon reduce his scope of privileges and hours of work so that his disability not potentially endanger patients.
The surgeon refuses to work with the medical staff on this.
What should the medical staff do?

13. Case Study #4
Management informs the MEC that it will be terminating a long term physician’s contract because he can no longer carry a ‘full load’ due to age. The Chief of Staff informs the CEO that it is the medical staff’s function to determine clinical competence through its peer review process.
Who is responsible and what should the CEO and COS do?

14. Final thoughts:
1. A good aging practitioner process optimally extends a professional’s practice safely.
2. Many practitioners have dual accountabilities through the MS bylaws and contract(s) and thus the process should be carefully coordinated between the MS and management.
3. A good process balances patient safety with the legal rights and dignity of practitioners.

15. Thank you for joining us!
Presenters:
Jon Burroughs, MD, MBA, FACHE, FACPE
The Burroughs healthcare Consulting Network, Inc., Glen, NH
Maria Greco Danaher, Esq.
Ogletree Deakins Nash & Stewart, PC, Pittsburgh, PA
James B. Hogan, Esq.
Hall Render Killian Health & Lyman, PC, Indianapolis, IN