Synergy - March/April 2014 - 14

industry feature

Pushing too aggressively or in a manner
perceived as discriminatory may result in a
suit from an older physician.
court lacked jurisdiction over Mattice's ADA
claim, because he was not an employee
but rather an independent contractor. The
court denied the motion without ever
getting to the issue of whether Mattice was
an employee. Instead, the court stated that,
because Mattice claimed to have been an
employee of a third-party physician practice,
he could seek ADA liability upon the theory
that the hospital interfered with his practice
employment on the basis of a disability. This
demonstrates yet another avenue in which a
non-employee member of the medical staff
could pursue a discrimination claim.
The ADEA provides statutory protections
for employees 40 years of age and older.
More specifically, the ADEA prohibits
employers from: (1) failing or refusing to hire
or discharging any individual or otherwise
discriminating against any individual
with respect to his compensation, terms,
conditions, or privileges of employment,
because of such individual's age; and
(2) limiting, segregating, or classifying
employees in any way that would deprive,
or tend to deprive, any individual of
employment opportunities or otherwise
adversely affect his status as an employee,
because of such individual's age.
The ADEA's prohibitions of singling out
individuals based on age raises potential
concerns with respect to policies regarding
mandatory physical examinations for
physicians once they reach a certain age.
When the triggering event of a physical
examination is solely based on age, and there
are no other specified concerns regarding
the physician's ability to perform the job,
there is potential exposure for an ADEA
discrimination claim, assuming the physician
can establish he/she is an "employee."
The ADEA provides an exception to the
prohibition of such age-based policies in
circumstances where an employer can
establish that the age-related requirement
is a bona fide occupational qualification
(BFOQ). To meet the BFOQ standard,
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SYNERGY MARCH/APRIL 2014

an employer must establish that the job
qualifications are reasonably necessary to
the essence of the business and that the
employer is compelled to rely on age as a
proxy for the safety-related job qualification.

Advice Going Forward
Recognizing the potential legal implications
when addressing aging physicians,
medical staffs should proceed under clear,
consistently applied policies. The focus
should be on the quality of care provided
by the physician. If there are concerns
regarding an aging physician's ability to
safely perform the functions of his/her
role, requesting a medical evaluation is
job related and consistent with business
necessity, and not problematic under the
ADA. Some institutions have adopted a
policy that all physicians must undergo an
annual physical attesting to their good health
once they reach a certain age. Another
approach is to shift from a two-year to
one-year reappointment period once a
physician reaches a predetermined age.
Ultimately, the legality of such policies
under the ADEA will hinge on: (1) whether
the physician qualifies as an "employee";
and (2) whether the policies can meet the
requirements of a BFOQ.
Navigating through the potential discrimination
allegations with an aging physician can
be challenging, but demonstrable quality
issues must be appropriately addressed.
Pushing too aggressively or in a manner
perceived as discriminatory may result in
a suit from an older physician. However,
failing to address the issue may result in a
patient claim for negligent credentialing or
a similar cause of action. It is essential these
occasionally opposing legal obligations are
carefully balanced.
Ideally, hospitals and medical staffs will be
proactive, considering the issues involved
with aging physicians in advance and
adopting policies tailored to address these
issues before concerns arise. In some cases,

the circumstances or practitioner response
will leave no option but to pursue corrective
action, fair hearings, and potentially a Data
Bank report. However, this avenue should
be considered a last resort. Where possible,
and with the physician's cooperation,
the aging practitioner's transition into the
final phases of his/her career should be
managed respectfully and with appropriate
consideration of their contributions to the
hospital and the patients they served. ■
1

Powell, Douglas H., Profiles in Cognitive Aging,
Harvard University Press, December, 1994.

1

42 U.S.C. § 11101 et seq.

1

42 U.S.C. 11101 et seq.

1

42 U.S.C. § 12111-12117.

1

29 U.S.C. § 621.

1

Community for Creative Non-Violence v. Reid, 490
U.S. 730, (1989).

1

42 U.S.C. § 12111-117.

1

203 F.R.D. 381 (N.D. Ind. 2001).

1

Mattice v. Memorial Hospital of South Bend, 1999
U.S. Dist. LEXIS 20933, *25-26 (N.D. Ind.
March 1, 1999).

1

29 U.S.C. § 623(a).

1

29 U.S.C. § 623(f)(1).

1

See Western Air Lines v. Criswell, 472 U.S. 400,
413-14 (1985).

Jonathan H. Burroughs, MD,
MBA, FACHE, FACPE, is
President and CEO of The
Burroughs Healthcare
Consulting Network, Inc. and
works with some of the nation's
top healthcare consulting organizations to
provide best practice solutions and training to
healthcare organizations throughout the country
in the areas of governance, physician-hospital
alignment strategies, credentialing, privileging,
peer review and performance improvement/
patient safety, medical staff development
planning, strategic planning, physician
performance and behavior management, as well
as ways in which physicians and management
can work together in new ways to solve quality,
safety, operational, and financial challenges.
James B. Hogan practices in the
area of medical staff and
physician relations, hospital and
physician joint ventures,
physician contracting, and
hospital risk management. He
regularly advises hospital and health system
leadership, boards, and medical staff on health
care issues. Hogan deals with all types of medical
staff matters, including bylaws, staff governance,
quality of care issues, peer review hearings,
disruptive and impaired physicians, and
credentialing issues.
Synergy - March/April 2014

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