Does Risk of Committing Medical Malpractice Increase With Age?

Are older doctor’s more likely to commit malpractice? If so, there may be a rise in medical malpractice claims. To that end, one-third of the nation’s physicians are over 65, and that proportion is expected to rise. As doctors in the baby boom generation reach 65, many are under increasing financial pressures that makes them reluctant to retire.

Many doctors, of course, retain their skills and sharpness of mind into their 70s and beyond. But physicians are hardly immune to dementia, Parkinson’s disease, stroke and other ills of aging. Some experts warn that there are too few safeguards to protect patients against those who should no longer be practicing.

A 2005 study found that the rate of disciplinary action was 6.6 percent for doctors out of medical school 40 years, compared with 1.3 percent for those out only 10 years.

In 2006, a study found that in complicated operations, patients’ mortality rates were higher when the surgeon was 60 or older, though there was no difference between younger and older doctors in routine operations.

As reported by The New York Times, a 78 year old vascular surgeon in California operated on a woman who then developed a pulmonary embolism. The surgeon did not respond to urgent calls from the nurses, and the woman died

Even after the hospital reported the doctor to the Medical Board of California, he continued to perform operations for four years until the board finally referred him for a competency assessment at the University of California, San Diego.

“We did a neuropsychological exam, and it was very abnormal,” said Dr. William Norcross, director of the physician assessment program there, who did not identify the surgeon. “This surgeon had visual-spatial abnormalities, could not do fine motor movements, could not retain information, and his verbal I.Q. was much lower than you’d expect.”

Yet “no one knew he had a cognitive deficit, and he did not think he had a problem,” Dr. Norcross continued. The surgeon was asked to surrender his medical license.

Patient advocates note that commercial pilots, who are also responsible for the safety of others, must retire at age 65 and must undergo physical and mental exams every six months starting at 40. Yet “the profession of medicine has never really had an organized way to measure physician competency,” said Diane Pinakiewicz, president of the nonprofit National Patient Safety Foundation. “We need to be systematically and comprehensively evaluating physicians on some sort of periodic basis.”

Some experts are calling for regular cognitive and physical screening once doctors reach 65 or 70, and a small cadre of hospitals have instituted screening for older physicians. Some specialty boards already require physicians to renew their certification every 7 to 10 years and have toughened recertification requirements. But such policies have met resistance from rank-and-file doctors.

As a Medical Malpractice Lawyer I have encountered older physicians that are both competent and those that are not. However, to make the determination that competency or lack thereof is age determinate is difficult, if not impossible. In fact, one may argue that older physicians have more experience and thus greater knowledge. Thus, it is not right to paint with broad strokes. That being said, I do favor testing and recertification after age 65.

A hospital that keeps a doctor on staff in the face of diminishing skills, may face exposure to a claim for negligent credentialing, If that doctor commits malpractice. Thus, the policy at Driscoll Children’s Hospital in Corpus Christi, Texas that requires physicians 70 and older to undergo cognitive and physical exams that assess skills specific to their specialty is a model approach.

Dr. Jonathan Burroughs, a consultant with the Greeley Company, which advises hospitals and health care companies, told The New York Times that screening physicians may be a more compassionate route than doctors think. “By identifying the issue early enough, it enhances their chance of being able to practice longer,” he said. When a cognitive deficit is discussed openly, the physician’s practice can be simplified, he can reduce his patient load, and his partners can regularly monitor and assess his work.

“But once something bad happens,” Dr. Burroughs said, “he’ll get his license taken away.”