On a regular basis, we are asked about the advisability of developing a policy requiring a physician to pass a medical examination once he or she reaches a certain age (62, 65, 68, etc.) in order to be able to continue to maintain clinical privileges at a hospital. And our first response is always, “Absolutely, so long as you have decided that you are okay with exposing your hospital to a lawsuit with a good risk of losing.” That might seem a bit harsh, but it is a fact.
The law is relatively clear in the employment setting that if an employer imposes a restriction based upon age, it will constitute discrimination unless the employer can show that the age restriction is justified. This means that if the employer is sued because of the practice, the employer bears the burden of raising the defense that the age requirement should be upheld by the court as a bona fide occupational qualification (BFOQ). Unless the court agrees with the employer, a case of age discrimination is established. And to demonstrate a BFOQ, the employer needs to show that (a) the BFOQ is reasonably necessary for the normal operation of the business (e.g., practice of medicine) and (b) the employer is compelled to rely upon age as the determinative criteria for its employment directive. BFOQs are reviewed on a case-by-case basis and are very narrowly construed. The great majority of the time, the request for a BFOQ is rejected.
The issue of age discrimination is not limited to the employment setting. As contrasted with the Americans with Disabilities Act, which does not include age, many state discrimination laws do. For example, Ohio’s anti-discrimination law prohibits a place of public accommodation (such as a hospital) from denying an individual, on the basis of age, the full enjoyment and privileges of the accommodation. This means that when you set an age limit to which attaches a greater inquiry in order to retain clinical privileges, you are at risk of violating this public accommodation standard. And if the practitioners are also employed by a corporation affiliated with or controlled by the hospital, you run the risk of an argument that the age requirement at the hospital level was just a ruse to avoid the age requirement ban in the employment setting (which is governed by state law as well as the federal Age Discrimination in Employment Act). Once again, to overcome this prohibition, the place of public accommodation, once sued, would need to be able to establish that the standard to participate in the offering of the public accommodation is applied to all persons regardless of age.
If you truly believe that an examination is important, the safest approach is to require an examination of everyone with clinical privileges, regardless of age, on a routine basis; however, that examination is not without limits—it must be limited to job-related inquiries. Whether you go this route or decide to continue with mandatory examinations, we recommend limiting the information you receive to whether the reviewed practitioner can safely and effectively exercise his/her clinical privileges. You do not need to know (and should not be advised) about health conditions that are not relevant to that inquiry. For example, you may need to know that a surgeon has an uncontrollable tremor, but you do not need to know that a physician has a bipolar disorder that is managed by medication. In fact, having this latter information could potentially subject you to a disability discrimination claim in the future. You can also encourage practitioners to have a medical examination so that they, too, will feel safe continuing their practice. But you should not make it mandatory.
The bottom line is this: if you have an effective robust peer review program, you should be recognizing the surgeon who has developed a tremor at age 36 or the physician who is practicing outdated medicine no matter the physician’s age. It might seem “easier” to say, “Sorry, you can no longer practice because you failed an examination,” and there might be truth to the claim that “some people’s skills begin to deteriorate after a certain age (58? 62? 65? 70?).” But, to date, the law has not found either of these statements to be legally justified in the healthcare setting. This means that you not only run the risk of a discrimination claim by the practitioner, but you also run the risk of having to defend against a negligent credentialing claim justifying why you put 65 year old physicians under higher scrutiny than 64 year old physicians. The choice, of course, is yours, but we encourage you to be aware of the potential consequences.