Ilene N. Moore


In the U.S., one out of eight practicing physicians is older than sixty-five, and many practice well into their seventies. Many commentators and healthcare organizations, concerned that aging physicians are at risk for cognitive impairment, have urged, or actually instituted, cognitive "screening" for older physicians as a means to ensure patient safety. An age-based screening program, however, should not proceed unless supported by clear evidence and not prohibited by law. This article argues that neither of these conditions applies. Singling out all older physicians for cognitive testing is empirically unjustified and legally prohibited. Furthermore, there are other means to reliably monitor and identify physicians, both older and younger, who pose risk to patients. Legally, two federal statutes prohibit age-based screening. According to the Age Discrimination in Employment Act of 1967 (the "ADEA"), age-based screening constitutes prohibited discrimination because it is based on unsupported stereotyping about age and imposes a burden on one set of employees while overlooking others. According to the Americans with Disabilities Act of 1990 and the ADA Amendments Act of 2008 (collectively, the "ADA"), age-based screening constitutes prohibited discrimination because an employer is only permitted to require medical examination when it has reasonable belief that an individual has a condition that could interfere with job performance or the individual poses direct threat to others. The consequence of both these statutes is that hospitals cannot go on a "fishing expedition" and conduct en masse screening of their older medical staff; they can only examine those whom they have reason to believe may be impaired or otherwise dysfunctional. The article concludes by discussing processes and methodologies that facilitate identification of physicians of any age who may warrant further assessment. By enabling hospitals to identify physicians of all ages who pose risk to patient safety in a way that aligns with the principles of th e ADEA an d ADA, they can strike th e appropriate balance between fostering p a tien t safety and not discriminating against one physician demographic.