School of Law symposium explores cognitive testing for aging physicians
February 21, 2023
February 21, 2023
Quinnipiac School of Law recently hosted a panel discussion, “The New Age in Medicine: Cognitive Testing of Doctors Age 65 and Older – Necessary or Discriminatory?” with a panel of experts who analyzed the legal repercussions and benefits of recently implemented testing requirements.
“Our symposium will explore the legal, moral and ethical pros and cons of the cognitive testing of doctors and physicians, once they reach a certain age, usually 65,” said Alexa Binkowitz, JD ’23, editor in chief of the Quinnipiac Health Law Journal. “These tests are meant to act as an assurance that doctors are physically and mentally capable of providing medical care for their patients. However, some feel that this testing is not indicative of skill or competency but is instead discriminatory.”
Presented by the Quinnipiac Health Law Journal, the discussion was moderated by Jennifer L. Herbst, professor of law and medical sciences at Quinnipiac, with panelists presenting the difficulty and nuance in effectively assessing physician competence in order to improve patient safety. Catherine Ingersoll, JD ’23, research symposium editor, spent almost a year organizing the event and noted in her opening remarks that the discussion is both relevant and riveting, with implications affecting the future of healthcare in the United States.
Panelists included Michael R. Bertoncini, an attorney with Jackson Lewis; Dr. Ralph W. DeNatale, a vascular surgeon; Joshua Goodbaum, an attorney with Garrison, Levin-Epstein; Katherine Lam, an attorney with Jackson Lewis; Nicholas Ouellette, an attorney with Kurien Ouellette, LLC; Gary Phelan, an attorney with Mitchell and Sheahan, P.C.; and Scott Weiss, an attorney with Weiss and Weiss, LLC.
In recent years, hospitals have adopted requirements for screenings on older physicians in the name of patient safety. But many older doctors say the policies are ageist and do not adequately determine if they should be practicing medicine.
A board-certified vascular surgeon, DeNatale has been a physician in New Haven for more than 37 years and has participated in neurocognitive exams as part of the credentialing criteria to continue to work in the hospital setting. He explained aspects of the test which included reading a list of 15 words at the start of the exam and being asked to recite them back at the conclusion of an intense hour of concentration at the end of the exam. Or, on the computerized version of the test, seeing a series of numbers on the screen for less than a second and then being asked to recite them back in reverse order.
“It’s a lot easier doing a ruptured abdominal aneurysm than it was passing this exam,” said DeNatale, with a chuckle. “I did not find the exam necessarily unfair. I can’t criticize the exam itself. The catchphrase is always that we’re doing it for patient care. We want to try to weed out those who shouldn’t be practicing. And you can’t argue that.”
He notes that the Yale New Haven Health System has been requiring cognitive testing since 2014 and Hartford HealthCare, which instituted testing about two years ago, only just dropped the test from its requirements. DeNatale went on to explain the many ways in which physicians are credentialed and the extensive oversight that has been built into the system itself to ensure patient safety.
“Is it important? Is it necessary?” asked DeNatale. “You have to do it, but it’s only a small part of the credentialing criteria. You also must be board certified every two years in your specialty area, which is overseen by the American Board of Surgery. And it’s not easy to be board certified. It sets you apart from those who are not. Based on what I know, there are very few of us who did poorly and were told to stop practicing. And there are hundreds and hundreds of us still practicing.”
A recent study by the Association of American Medical Colleges (AAMC) indicates that a significant portion of the physician’s workforce is nearing traditional retirement age. More than 2 of every 5 active physicians in the United States will be 65 or older within the next decade, according to the report.
Michael Bertoncini and Katherine (Kasey) Lam recently co-authored a study specifically examining the potential benefits, risks, and concerns for healthcare systems that adopt cognitive forms of tests. Bertoncini is a principal in the Boston office of Jackson Lewis P.C. He is co-leader of the Healthcare Industry group and member of the Higher Education group.
“There is a lot of data that a large percentage of our physicians are 65 and over, and we are on the verge of a significant shortage of physicians. It doesn’t do the healthcare system any good to push these physicians out,” said Bertoncini, who noted that more conversations are necessary to determine what the tests actually mean for the careers of practicing physicians.
"We don’t talk enough about what happens if a doctor doesn’t pass," continued Bertoncini. "It doesn’t necessarily mean the doctor isn’t properly credentialed anymore but it might mean a restriction on their practice or the need for more supervision in operating rooms.”
Lam weighed in on the hospital and healthcare systems’ point of view on testing. She is an associate at Jackson Lewis P.C. with a focus on labor and employment law.
“The real reason hospitals are interested in this is that they can be directly liable in the event a surgeon makes a mistake in the process of a surgery and the patient is injured,” said Lam. “So, what is holding them back from testing? The answer is age discrimination lawsuits from doctors. One way to institute these tests is to say that in order to do this job, these are the occupational qualifications, these are the skills necessary you need to have, and then design the tests to assess those skills specifically.”
Joshua Goodbaum provided insight into the Equal Employment Opportunity Commission's (EEOC) perspective on cognitive testing on the federal level. Goodbaum has been named “Lawyer of the Year” multiple times by Best Lawyers for his work in the area of employment law, representing Connecticut employees and other civil rights plaintiffs in litigation and negotiation.
Goodbaum discussed the current U.S. Equal Employment Opportunity Commission’s lawsuit against Yale New Haven Hospital, which charges that the requirement that the medical staff age 70 and older undergo cognitive testing violates federal anti-discrimination law.
“This case is interesting because it is a test case, an impact case, in the sense that we don’t know the answer to our questions. We can dig into the statutes of the Americans with Disabilities Act and the provision about health-related inquiries such as neurocognitive testing or vision testing. Or we can try to find answers in the Age Discrimination in Employment Act,” said Goodbaum. “Either way, I think the EEOC has identified that this is a trend happening around the country, and they want to say something about it. Everybody is watching to see what happens with this case.”
The debate over whether the tests are discriminatory under the Americans with Disabilities Act is rooted in the examination of job skill assessment, according to Gary Phelan, shareholder at Mitchell & Sheahan, P.C., where he represents employees and employers in a wide range of matters, including disability and age discrimination.
“The primary question under the Americans with Disabilities Act is whether this is a disability-related inquiry,” said Phelan. “Back in the day, there used to be a way to identify or check boxes to make a determination, but the ADA did away with that. When you have a situation like this, when you have any sort of medical inquiry, there has to be a business assessment. The inquiry must be job-related and consistent with business assessments.”
Scott Weiss expanded on the issue of whether the tests are valid measures of job performance and a physician’s ability to make patient assessments and informed decisions. Weiss is a member of Weiss & Weiss LLC and is experienced in representing unions and employees in labor and employment law issues.
“The Age Discrimination Employment Act protects individuals over the age of 40. But I have to wonder what part of the test was job-related to the work you do as a surgeon?” he asked, turning to DeNatale during the panel discussion. “I mention it because I wonder, aren’t there enough guardrails already in place in hospitals, with teams surrounding these doctors to ensure patient safety and a doctor’s cognitive abilities?”
As the panelists discussed the legal ramifications of the tests as discriminatory in nature, Nicholas Ouellette helped to shed light on the factors and questions attorneys should be asking doctors who feel they are facing discrimination to determine the answer. Ouellette is a member of Kurien Ouellette LLC and focuses on civil litigation.
“Part of our discussion should be about what is going on in the workplace, what has been your performance leading up to these tests? If a doctor feels they are being discriminated against because of age, we need to try to ascertain the reason these tests are being imposed on them on the employees’ side,” said Ouellette. “I understand from the employers’ perspective why age may be a risk. However, the sole determinant is that it causes an invisible line to be drawn at 65 years old. To me, it would throw up a red flag that there is something inherently improper about age as a standard.”
The panel went on to talk about the cost and investment of testing, explored the question of why hospitals aren’t conducting cognitive testing on all doctors, and examined the role of “business” in the decisions being made by the healthcare systems. As the discussion reached its conclusion, Lam offered a final thought on the need for balance between testing and patient safety.
“Medical professionals have a devotion for their patients and the desire to treat them well. In fact, because of that desire, they should want to ensure that their skills are at the appropriate level. I think all doctors should be assessed. By assessing people when they’re younger you have a baseline to see if there is any change,” said Lam. “If there is a change, that shouldn’t mean you are out. Older doctors have a wealth of experience and knowledge. I think there is a way we can use that experience. They can teach. They can lecture and still use their skills. In this way, we can respect the doctor while protecting the patient at the end of the day.”
Despite the debate the cognitive testing has spurred, DeNatale wrapped up the evening with a final thought from the physician’s perspective.
“Whatever is decided, many of us are just going to do what we’re told because we love what we do. And it’s not going to stop us from taking care of our patients,” said DeNatale. “From the beginning of my career to the end of my career, it’s not a business. It's a way of life. The patient comes first. And that’s how medicine should always be viewed,”
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