Yale New Haven Hospital’s cognitive tests for older doctors headed toward legal fight

By Staff

The doctor at your hospital bedside sports a head of gray hair and graduated from medical school well into the last century. Does that mean your care will benefit from the doctor’s long experience or suffer from their less nimble brain?

That’s the issue at the core of a lawsuit against Yale New Haven Hospital moving toward a trial later this month in U.S. District Court in Bridgeport. 

The federal Equal Employment Opportunity Commission sued Yale New Haven Hospital in 2020 over its policy requiring that medical staff members over age 70 be tested for “cognitive health.”  

A 75-year-old doctor then employed by Yale argued as a lead plaintiff for the EEOC that the policy was age discrimination. Yale said the policy had been launched in 2016 to protect patients from the small subset of older doctors who represent a safety risk due to declining mental acuity. 

After six years, dozens of filings and shifts in the legal team, the case is scheduled for pre-trial oral arguments on Aug. 27 before Judge Kari A. Dooley.

Since the case was filed, the lead plaintiff in the case, Dr. Irwin Nash, has let his medical license expire and no longer works for Yale New Haven Health, the hospital’s owner. 

Yale New Haven Hospital’s cognitive testing program, called the Late Career Practitioner Policy, is still in force, spokesperson Robert Hutchison said. 

Yale case impacts testing nationwide

The lawsuit is being watched by health systems nationwide as hospitals assess recent data that shows that a meaningful percentage of doctors over age 65 show signs of cognitive decline that could endanger patients, said Dr. Thomas Gallagher, a professor of medicine at the University of Washington who has studied older providers. 

In a study published by Yale New Haven Hospital in 2020, 12.7% of doctors over 70 who were screened “had cognitive deficits which gave us great concern about their ability to practice medicine independently,” one of the study’s authors told new site MedPage Today. 

A Hartford HealthCare study published in 2021 found that 14.4% of 160 doctors over 70 who were screened as part of a new testing policy showed some degree of cognitive impairment.

Doctors were tested on memory, ability to keep current with medical knowledge and general thinking and visual skills. But most of the doctors flagged for cognitive issues had no prior reports of issues on the job nor any awareness they were declining, Gallagher said. 

“None of those physicians were already on the radar screen of the medical staff leadership as being someone who they needed to keep a close eye on,” Gallagher said of the Yale doctors highlighted in the 2020 data. “Those cognitive tests detect problems before the physician and before their leadership is aware that there’s a risk. You have to really run everybody through a brief screening program to check once they hit age 65 or 70.”

The court action has put some health systems’ efforts to screen doctors on hold and killed others, Gallagher said. 

“I think the EEOC lawsuit was very important and has really hampered the growth of late-career practitioner programs across the healthcare profession,” Gallagher said. “The lack of clarity about the legal status of these programs, I think, has been unfortunate.”

The uncertainty comes as most patients assume that doctors — like airline pilots and crane operators — undergo some kind of regular testing for mental fitness.

“The public would be surprised to know that those programs are the exception rather than the rule,” Gallagher said. 

Patients should inform themselves about the issues around cognitive health in late-career doctors and step up to report any concerts about care to a hospital’s patient relations department or the complaint portal at the state Department of Public Health, Gallagher said. 

“While I don’t think patients need to be concerned, they should be aware,” Gallagher said. “And if they do sort of think ‘perhaps my physician is starting to struggle a little bit’ or they have concerns about the care, there are all sorts of ways that patients can share those concerns.”