What to do about Age-Related Decline among Physicians, Judges?

scalpelThe sad fact is that some older professionals show signs of serious age-related decline but refuse to retire, potentially endangering the public.

There is ongoing debate in the legal and medical professions about how to protect  the public from cognitively impaired federal judges and aged surgeons who suffer from a serious loss of fine motor skills. However, aging professionals typically scream age discrimination when their autonomy is questioned so the proposed solutions to age-related impairment all rely upon voluntary action by the impaired individuals.   And this is pretty much what we have already.

A recent article in the Journal of the American Medical Association (JAMA) expresses concern that “[a]bsent robust professional initiatives in this area, regulators and legislators may impose more draconian measures.”  Of course, in truth, patients and litigants have little reason to hope that Congress will forgo campaign contributions from two of the nation’s largest lobbying groups – the AMA and the American Bar Association – to act to protect the public.

Meanwhile, the JAMA article notes that 23 percent of practicing physicians were 65 years or older in 2015. The authors note that research indicates the mean cognitive ability of an individual declines between the ages of 40 and 74 by more than 20 percent. The “mean” is the calculated “central” value of a set of numbers. At one end of the spectrum individuals have retained their full ability and skills while at the other, individuals are profoundly impaired. When it comes to aging, the author state, there is “significant variability from one person to another.”

Federal law permits mandatory retirement  for several professions, including  pilots, state court judges, air traffic controllers, FBI employees, police and firefighters. But not doctors.

According to the JAMA article, the American College of Surgeons Board of Governors’ Physician Competency and Health Workgroup published a report in 2016 that represented “an important step forward. ” While eschewing a mandatory retirement age, the ACS recommended that starting at 65 to 70 years, surgeons undergo voluntary and confidential baseline physical examination and visual testing for overall health assessment, with regular reevaluation thereafter. In addition, the ACS recommended that surgeons voluntarily assess their neurocognitive function using online tools and disclose any concerning findings. Does that sound like wishful thinking?

Mandatory age-based evaluations feature anonymous feedback by peers and coworkers.

The authors recommend that health care organizations follow the lead of three hospitals that have introduced mandatory age-based evaluations – The University of Virginia Health System, Charlottesville; Driscoll Children’s Hospital, Corpus Christi, Texas; and Stanford Hospitals and Clinics, Stanford, California.. This process includes a required cognitive evaluation combined with a confidential, anonymous feedback evaluation by peers and coworkers regarding wellness and competence.

“Such mandatory wellness testing and peer evaluation has the benefit of potentially identifying physicians whose competence is declining before patients are harmed and also connecting these physicians with programs that could restore their ability to practice safely,” the authors state.

But what if the impaired doctor refuses to retire or, in this era of shortage of medical practitioners, moves to another facility in desperate need of a surgeon?

The authors also recommend that large professional organizations “identify a range of acceptable policies to address the aging physician while leaving institutions flexibility to customize the approach.”

Typically,  the legal profession lags far, far behind.

Thirty-three states and the District of Columbia have adopted mandatory retirement ages for state court judges but federal judges have lifetime appointments absent impeachable behavior. This is particularly apparent on the U.S. Supreme Court where, according to Bloomberg Politics,  the projected age when a justice will retire is now about 83— a 10-year increase from the 1950s.

Fellow U.S. Supreme Court Justices and the legal profession appear to simply look the other way when Justice Ruth Bader Ginsberg, 84, naps during oral arguments.

Respected jurist Richard A. Posner of the  U.S. Court of Appeals for the 7th Circuit in Chicago stated recently that there should be a mandatory retirement age for federal judges – possibly age 80.  This is truly revolutionary talk.

At present, the ABA Model Code of Judicial Conduct contains a toothless rule: “A judge having a reasonable belief that the performance of a lawyer or another judge is impaired by drugs or alcohol, or by a mental, emotional, or physical condition, shall take appropriate action, which may include a confidential referral to a lawyer or judicial assistance program.” The ABA offers a feeble “cognitive assistance tool” that is intended to generate a voluntary discussion with an attorney who shows signs of cognitive impairment.

Personally, if and when I go to an emergency room, I don’t want to be operated on by a surgeon who suffers from significant fine motor loss. I don’t care if this condition is related to age or disease.  It’s not acceptable.  And, while I have enormous respect for Justice Ginsberg, it should be a minimal job requirement to stay awake during oral arguments.

It seems we are all rolling the dice these days.

 

  • JAMA Surgery,, The Aging Physician and the Medical Profession. A Review, by E. Patchen Dellinger, MD; Carlos A. Pellegrini, MD; Thomas H. Gallagher, MD. (July 19, 2017).
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Author: pgb

Attorney at Law, author and blogger.

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