Ageism in Medicine: A Look at Medical Ethics, Laws, and Regulations

Where Do We Go from Here?

Many physicians choose to work past the traditional retirement age, providing valuable knowledge and advanced skills, and employers increasingly focus on ensuring that these physicians are both physically and mentally fit to provide safe, high-quality care. The challenge for employers is to make sure they’re adopting policies that don’t run afoul of the ADEA or ADA. A court is more likely to find testing for a particular specialty (e.g., fine motor-skill tests for surgeons) to be legitimate when such tests are evidence based and not subject to arbitrary interpretation or based on age alone.

In 2018, the AMA’s council on assessing competency of senior, or late-career, physicians failed to gain adoption of a set of guidelines for age-based competency testing. Many physicians objected to this action, concerned that it could be used to unfairly force out or inadvertently keep physicians of a certain age from practicing, ultimately worsening the existing physician shortage. Medical professionals additionally noted that aging is nuanced and highly varied. As such, ageism fails to account for early onset dementia in middle-aged physicians or for senior physicians who practice well beyond age 70 with a cognitive sharpness that rivals younger colleagues.

Age screening examples modeled by healthcare institutions show very different approaches and suggest there isn’t a one-size-fits-all answer. The example of Yale New Haven’s false positive physician cognitive test results exposes the risk of unfairly excluding advanced physicians who offer valuable skills and medical judgment.

Although physicians in some states or at certain institutions may be required to undergo age-based screening exams, they should take steps to ensure that these tests are based on objective criteria, lean on patient outcomes and performance data, and question whether screenings are an objective test of cognitive ability. Meanwhile, the medical and legal communities continue to look to the courts for new precedent and to medical governing bodies across the states for more uniform standards.

Steven M. Harris, Esq., is a nationally recognized healthcare attorney with McDonald Hopkins LLC. Contact him at sharris@mcdonaldhopkins.com.

Reprinted with permission from the American College of Rheumatology.