Ericka L. Adler, JD, LLM has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions, and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark Law, Anti-Kickback Statute, and HIPAA. Ericka has been writing for Physicians Practice since 2011.
Most practices have no formal written approach to confronting physicians with medical issues. Here are some tips.
There have been several articles in the news recently about the need for oversight of older physicians to assure competency. An article in the Washington Post in collaboration with Kaiser Health News gave examples of impaired physicians, such as a vascular specialist in his 80s who performed surgery and then went on vacation, forgetting he had patients in the hospital. One patient, who had no doctor managing his care, later died. Another example cited was a physician who suffered a stroke and got lost in his own office going between exam rooms.
Although these are extreme examples, they are possible scenarios facing physicians as they age. It’s estimated by the AMA that about 42 percent of the nation’s one million physicians are older than 55 and 21 percent are older than 65, according to The Post. This means that physician impairment due to physical and cognitive medical issues is a growing concern.
To address the issues of aging physicians, some hospitals now require doctors over a certain age (usually starting between ages 70 and 75) to undergo periodic physical and cognitive exams as a condition of renewing their privileges. It’s likely many physicians will retire rather than undergo forced competency testing, while others will be obliged to acknowledge medical concerns. Whether voluntary or forced retirement under one hospital’s program will become a reportable event that affects licensure or privileges at other institutions is not yet clear.
From the perspective of a physician practice, this trend might be a positive one. As discussed in an earlier blog, many practices find themselves in the difficult position of trying to address medical issues affecting physician colleagues. Because impaired physician typically cannot (or will not) admit impairment, others are often forced to hide their colleague’s errors, fix mistakes, or otherwise make excuses for the impaired physician.
While confronting impaired physicians directly is advisable, it can be awkward or badly received. At the same time, most practices are aware that postponing action can result in potential harm to patients, malpractice cases against the impaired physician (and the practice), or loss of the impaired physician’s license; a devastating result for a proud practitioner.
Other frequent concerns I hear about older physicians include resistance to new technology and a preference for “outdated” medical techniques (with which they are more comfortable), even though the preferred approach may pose higher risks or offer lower success rates. Other physicians continue to perform procedures even when observed as lacking the strength or exhibiting shakiness or uncertainty.
Most practices have no formal written approach to confronting physicians with medical issues, including deteriorating hearing, vision or motor coordination, or impairments such as dementia.
To address these possible issues in your practice, consider the following:
1. In the event there appears to be reasonable evidence of a physician deficit that could impact patient care, the practice should formally meet with the physician and require a visit with a third-party physician selected by the practice for evaluation. For larger practices, different voting requirements can be considered to demand this evaluation.
2. If a physician refuses to be evaluated, the practice’s documents should require such a visit as a continuing condition of employment/partnership. It’s important to tailor any such provision to comply with state and federal laws.
3. Based on the particular situation, practice documents can allow for a program of limited duties, reassignment to particular roles or other reorganization to accommodate a physician’s continued medical practice, if possible. For example, while hearing aids might completely resolve all issues, shaky hands might require surgery to be curtailed.
4. The practice should talk with counsel about the correct combination of benefits and compensation that might be needed to address competency issues in advance, as well as the creation of a retirement program that might encourage a “disabled” physician to feel he or she can retire with dignity.
Talk to the physicians in your practice about how prepared you are to handle a physician that exhibits a competency issue. Plan well in advance for this possible scenario and think about how you would want and expect to be treated. With an aging population of physicians, it’s likely to become an issue sooner than you think.