Despite what many physicians and the public at large may believe, no chronologically based definition of physician competence exists in the U.S.
According to a representative of the Federation of State Medical Boards (FSMB), advanced age is not considered a potentially disqualifying criterion for holding an unrestricted medical license in any state, although some states have established a minimum age for physician licensure.
Given the lack of age restriction for physician practice, considerations of aging and competence—particularly as they relate to surgeons—are often left up to hospital medical staffs, and frequently to the surgeons themselves.
Older surgeons at greater liability risk?
I vividly recall a revered senior professor in my residency program who made the personal decision to stop performing surgery upon reaching age 70. When I spoke with him at a recent AAOS Annual Meeting, he told me, “When a surgeon is 70 years old and a problem arises—that has to be malpractice, as far as the lawyers are concerned.”
Is this the case? Should state licensing authorities or some other regulatory entity prescribe a date at which “surgical competence” ends? These are difficult questions, but the best solution seems to be that physicians should “police our own” before a less knowledgeable, outside regulatory entity establishes criteria that may not serve the best interests of surgeons and patients.
Objective assessment of surgical skill
Several authors, both within the United States1 and overseas,2 have pointed out the difficulty in objectively assessing a physician’s surgical skill. This issue has largely been driven by concern over the current model of resident training. Pressure for increased productivity in an era of declining reimbursement and mandated limitation of resident work hours has significantly reduced the actual surgical experience of trainees when compared to the traditional “apprentice” model of residency.
Tools that objectively assess surgeons’ manual dexterity, procedure-specific technical skill, and surgical decision-making are being developed in all surgical specialties. These tools—which are still in the early developmental stages—often involve the use of live animal surgery or computer-generated “virtual reality.”
It would perhaps behoove the AAOS to embrace objective assessment of technical skill. Interest in peer-driven, objective assessment of competence is a topic of keen interest on the part of the American Board of Orthopaedic Surgery (ABOS)—as evidenced by the ABOS’ new Maintenance of Certification model. This certainly seems appropriate, since at least one recent peer-reviewed article suggests that physician competence, adherence to appropriate standards of care, adoption of improved procedures, and overall patient outcome paradoxically declines with increasing duration of practice and with advancing physician age.3 It seems that the objective assessment of technical skill may best serve our profession by helping surgeons define when chronology dictates that they cease surgical patient care.
Any help from case law?
If the objective definition of age-related competence remains elusive, does U.S. case law offer us any guidance? I posed this question to various entities, including two state boards of medicine, the FSMB, and the American Medical Association’s legal department. The answer seems to be that no specific case law exists and that the Age Discrimination in Employment Act of 1967 (ADEA) is the primary reason. The ADEA protects individuals age 40 years and older from employment discrimination based on age. Although many physicians are self-employed/independent contractors, confusion abounds in government, among the general public, and even within the healthcare community regarding the potential employment relationship between physicians and hospitals. This confusion, and the fact that more and more U.S. physicians are being employed by healthcare institutions, has resulted in fear of retribution based on the ADEA. This circumstance has effectively prevented legal challenge of physician competence based purely on a physician’s age.
Airline industry’s “Age 60” rule
The lack of any age limitations for physicians is in contradistinction to some other industries, especially those that come under frequent public and media scrutiny. One example of age restriction among professionals is found in the airline industry.
According to the “age 60 rule,” commercial airline pilots face mandatory retirement upon reaching age 60 years. To maintain their license, airline pilots also must pass a rigorous physical examination on at least an annual basis. The “age 60 rule” was originally instituted by the Federal Aviation Agency (now Authority) (FAA) in 1959, and its basis in science is not well established. Recently, the FAA announced its intent to open up the “rule making process” related to this rule, which may lead to changes.
Easing the transition to retirement
From the individual aging surgeon’s perspective, retirement from the active practice of surgery may be viewed by some as a negative life transition. Based on a 1999 survey of 708 retired orthopaedic surgeons, Ritter et al4 found that this attitude is often driven by a change in perceived self worth, with one third of respondents reporting that the most difficult aspect of retirement is the “loss of the role of the orthopaedic surgeon.”
Although many of the survey respondents found having more time for pursuits outside of medicine and surgery to be a positive life change, 20 percent said that “keeping busy” was a challenge. Given this, the AAOS may be able to help ease its members’ transition to retirement by providing ways for retiring orthopaedists to continue using the skills they have spent a medical lifetime acquiring.
One way that retired orthopaedists can continue to share their valuable knowledge and skills is through participation in a volunteer organization such as Health Volunteers Overseas. (For more information, see “Retired orthopaedists: A wasted resource?” in the December 2005 Bulletin or visit www.hvousa.org.) Additionally, the AAOS may consider establishing a formal mentoring program that pairs retired mentors with actively practicing surgeons, or pursuing legislative action to allow retired surgeons to assist in surgery without fear of medicolegal consequence.
As demonstrated in the Academy’s 2006 Orthopaedic Practice in the United States report,5 the U.S. orthopaedic surgeon workforce continues to age—with 5 percent of all active orthopaedists now 70 years of age or older. As a profession, it is incumbent on orthopaedic surgeons to work toward an objective definition of surgical and cognitive competence so that quality patient care—and not fear of legal retribution—drives an orthopaedic surgeon’s transition away from active practice.
Charles D. Hummer III, MD, is a member of the AAOS Medical Liability Committee.
- Leopold SS, Morgan HD, Kadel NJ, Gardner GC, Schaad DC, Wolf FM: Impact of educational intervention on confidence and competence in the performance of a simple surgical task. J Bone Joint Surg Am 2005;87:1031-1037.
- Moorthy K, Munz Y, Sarker SK, Darzi A: Moorthy, K: Objective assessment of technical skills in surgery. BMJ 2003;327:1032-1037.
- Choudhry NK, Fletcher RH, Soumerai SB: Systematic review: the relationship between clinical experience and quality of health care. Ann Intern Med 2005;142:260-273.
- Ritter MA, Austrom MG, Zhou H, Hendrie HC: Retirement from orthopaedic surgery. J Bone Joint Surg Am, 1999;81:414-418.
- Watkins-Castillo S: Orthopaedic Practice in the U.S. 2005-2006. Rosemont, IL, American Academy of Orthopaedic Surgeons, 2006.