• CMottHesse

Physicians Of a 'Certain Age'

The scenario is a tricky, multi-faceted one: The United States is facing a substantial shortage of physicians, largely due to the growth and aging of the population and the impending retirements of older physicians; yet growing concern exists over the competency and cognitive ability of some "older" physicians, which may impact patient safety and have legal/malpractice ramifications. Forty-three percent of all physicians are age 55 or older and 20% of all physicians are age 65 or older. On average, specialists tend to be older than are primary care doctors: for example, 73% of pulmonologists and 60% of psychiatrists are age 65 or older, compared with 40% of internists and 38% of family practitioners. Further consider that, since 2011, about 10,000 Baby Boomers turn 65 per day in the United States. Despite those aged 65 or older comprising only 14% of the population (12.4% in Idaho), they account for more than one-third of inpatient procedures and diagnostic treatments and tests.

While reports often suggest that primary care physicians are in short supply, hard data also indicate a growing, national shortage of medical specialists. Because specialists such as cardiologists, orthopedic surgeons, neurologists, rheumatologists, pulmonologists, and vascular surgeons primarily care for the declining health and organ systems of elderly patients, an increasing number will be needed as the population ages. Coupled with data from physician surveys that show 80% of specialists are overextended or at capacity, while only 20% have time to see more patients or take on new duties, the numbers feel grim for the future of medical services and the health profession's capacity to treat the population in decades to come.

A 2019 study conducted for the Association of American Medical Colleges (AAMC) predicts that the United States will face a shortage of between 46,900 and 121,900 physicians by 2032, including in both primary and specialty care. Even more troubling is that Congressional caps placed on graduate medical education (GME) funding--which was set in 1997 and directly impacts residency training positions--through the Centers for Medicare and Medicaid Services (CMS) during the last 20 years have not kept pace with population growth or aging, nor have they kept pace with the increasing medical school enrollment. Efforts to increase the supply of physicians generally have been focused on primary care rather than medical specialties, and there is a prevailing notion in some policy making circles that the number of specialists should not be increased. The National Center for Health Workforce Analysis's 2013 projections indicated that there would be a primary care physician shortage in 2020, but that the magnitude could vary greatly depending on assumptions about the role of non-physician providers; specifically, they projected the number of primary care physicians would grow by 8% between 2010 and 2020, but the demand for those services would grow by 14%. Given that it takes anywhere from 7 to 15 years to train a doctor, projected shortages in 2032 need to be addressed now so that patients will have access to the care they need. What is encouraging news, however, is that legislation has been introduced in both the House and the Senate, entitled the Resident Physician Shortage Reduction Act of 2019 (H.R. 1763, S. 348), which takes an important step towards alleviating the physician shortage by seeking to gradually add 15,000 Medicare-supported GME residency positions over a five-year period.

Now, consider this: Recognizing the rising ages of older physicians, many hospitals and institutions are beginning to test "older" physicians on their mental and physical acuity. However, physicians are raising questions of fairness, scientific validity, and ageism as a result of those tests/evaluations. Further, in light of the growing shortages of providers, current practitioners are even more loath to abandon patients and give up their practices. Interestingly, the American Medical Association's House of Delegates voted in 2016 that a systematic evaluation should exist for evaluating aging physicians, and perhaps formal guidelines for the timing and method of competency testing for older physicians should be adopted for those who wish to maintain staff privileges beyond a certain age.

Competency in physicians refers to a doctor's ability to practice with reasonable skill and safety, which involves both cognitive and physical considerations. While a physician's responsibility and commitment to practice competently (typically) does not change throughout one's professional career, age-related changes can influence one's ability to do so. For example, beginning at age 40-50, vision and hearing begin to diminish, while visual-spatial ability, inductive reasoning, verbal memory and other cognitive functions suffer the steepest declines after age 65. Equally significant is the fact that not all abilities decline with age: older physicians do have some advantages, such as "crystallized" (or accumulated) knowledge, better ability to reach an early diagnosis, experiencing less psychological distress, and suffering less burnout as compared with younger physicians.

Until now, self reporting has largely regulated the age at which physicians stop practicing, but it is not always effective. For example, older physicians with mild cognitive dysfunction do not always realize their limitations, and their colleagues are reluctant to report them due to concerns of being disrespectful; these physicians tend to rely on pattern recognition in their continued practice and often do not track evidence-based, evolving standard for diagnosis and/or treatment.

Undoubtedly, competency is difficult to assess, and age alone cannot be used as the basis for reviewing and evaluating a physician's competency to practice medicine.

While no court has set forth a mandatory retirement age for physicians and no credentialing or licensing body has set a firm mandatory retirement date for physicians, some credentialing bodies have established age-related policies establishing an evaluation process for physicians when they reach a certain age. For example, the Joint Commission requires hospitals to take an active role in assessing competency, and the Ongoing Professional Practice Evaluation (OPPE) is a program for which the hospital bears the responsibility for allocating necessary resources to develop and maintain the process.

In connection with hospitals' and institutions' goals of improving patient safety, several have adopted age-related physician policies in recent years. Further, the courts are seemingly keeping pace in this arena, as case law has established that institutions, hospitals, and physician groups can be held directly liable for injuries caused to patients where there was evidence of deficiencies in the physician's skills or judgment that posed a danger to a patient. Further, a number of medical malpractice carriers now require an age-related physician review to include annual physical examination and annual appearance before their underwriting board upon reaching a certain age to continue being insured by that carrier.

The Age Discrimination in Employment Act (ADEA) of 1967 protects people who are 40 years or older from age discrimination in employment, including mandatory retirement ages. However, the courts have generally concluded that, for certain occupations, particularly those in which public safety is involved, age is an employment qualification that employers are allowed to consider while making decisions about hiring and retention of employees. Some of these professions include commercial airline pilots (mandatory retirement at age 65), FBI agents (age 57), and air-traffic controllers (generally age 56). Further, some countries have implemented policies about age-based restrictions on physicians’ practices, some of which have been further modified in response to workforce needs. In the United Kingdom,for example, health professionals are allowed to switch to part-time work while preserving their pension entitlements, while in other countries, mandatory retirement ages for physicians were abolished in response to physician workforce shortages (e.g., Germany lifted its retirement age of 68 for general practitioners/primary care physicians in 2009).

While the likelihood of an implemented mandatory retirement age for physicians in the US remains uncertain for myriad reasons, questions about aging physicians’ competence still persist. Of course, the American Board of Medical Specialties and its member boards could incorporate some additional measures into the re-certification requirements for physicians beyond a certain age, and/or credentialing could ostensibly

include some age-based testing components for practitioners beyond a certain age, justified by the need to ensure patient safety.

At present, only an estimated 5 percent of US medical centers have developed age-related screening policies: the University of Virginia and the Stanford Health system are well-known examples. In 2011, the University of Virginia Health System implemented mandatory physical and cognitive exams every two years for physicians beginning at age 70, while in 2012, Stanford instituted a late-career practitioner policy, including a peer evaluation of clinical performance, a cognitive examination and a comprehensive history and physical examination every two years for physicians aged 75 and older. Nevertheless, in 2015, the Stanford policy was rejected on grounds that it constituted age discrimination, which reflects the likely uphill battle implementation of such policies would incur. Among the difficulties with mandating these assessments is the lack of practical screening tools that are specific, measurable, cost-effective, easily utilized, and accurately predictive.

While a viable solution to address the intersection of the growing elderly population, the rising age of practicing physicians, and the ongoing shortage of physicians remains elusive, measures are being actively evaluated by a number of lawmakers, medical associations, hospitals, and concerned citizens. Hopefully, we will know more on one piece of this jigsaw puzzle by year's end, and see whether the Resident Physician Shortage Reduction Act of 2019 is enacted.

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