Screening Older Physicians for Cognitive Impairment: Justifiable or Discriminatory?

Abstract

In the U.S., one out of eight practicing physicians is older than 65, and many practice well into their seventies. Many commentators and healthcare organizations, concerned that aging physicians are at risk for cognitive impairment, have urged, or actually instituted, cognitive “screening” for older physicians as a means to ensure patient safety. An age-based screening program, however, should not proceed unless it is supported by clear evidence, meets established criteria for screening programs and is not prohibited by law.

This article argues that none of these conditions apply. Singling out all older physicians for cognitive testing is empirically unjustified and legally prohibited. Empirically, there are more reliable ways to help identify and assist physicians, both older and younger, who pose risk to patients. Legally, two federal statutes prohibit age-based screening. According to the Age Discrimination in Employment Act of 1967 (ADEA), age-based screening constitutes prohibited discrimination because it is based on unsupported stereotyping about age and imposes a burden on one set of employees while overlooking others. According to the Americans with Disabilities Act of 1990 (ADA), age-based screening constitutes prohibited discrimination because a hospital can require medical examination only when it has a reasonable belief that a particular individual has a condition that could interfere with job performance or the individual poses direct threat to others. The consequence of both these statutes is that hospitals cannot go on a “fishing expedition” and conduct en masse screening of their older medical staff; they can only examine those whom they have reason to believe may be impaired or otherwise dysfunctional. The article concludes by discussing valid methodologies and processes by which such selection can be made. These methodologies enable hospitals to identify all physicians who pose risk to patient safety, regardless of age, and align with the principles of the ADEA and ADA, thus striking the appropriate balance between providing safety to their patients and acting fairly toward their physicians.

Keywords: Cognitive impairment, Americans with Disabilities Act of 1990, Age Discrimination in Employment Act of 1967, dyscompetency, discrimination, managerial control, The Joint Commission, medical staff, ongoing professional practice evaluation, focused professional practice evaluation, OPPE, FPPE, patient

JEL Classification: K32