Marisa Peryer

The Equal Employment Opportunity Commission sued Yale New Haven Hospital for alleged age discrimination, asserting that the care center has violated multiple laws in its clinician reappointment process.

According to the Feb. 11 lawsuit, YNHH allegedly administered additional testing only to practitioners aged 70 years or older who applied for reappointment to their positions. Every two years, clinicians at YNHH are required to undergo screening in order to qualify for reappointment to their position, according to the suit. As part of a relatively new “late career practitioner policy,” these tests are designed to protect patients from potential harm while, “including safeguards to ensure that our physicians are treated fairly,” according to a YNHH spokesman. While the lawsuit alleges that YNHH violated the Age Discrimination in Employment Act and the Americans with Disabilities Act, the spokesperson told the News that YNHH will stand by its policy.

“The policy is modeled on similar standards in other industries and we are confident that no discrimination has occurred and will vigorously defend ourselves in this matter,” the spokesperson said.

The lawsuit claims that “at or around” March 2016, YNHH implemented additional conditions for reappointment for clinicians over the age of 70, requiring that they undergo both ophthalmological and neuropsychological testing — while clinicians below the age of 70 are exempt.

According to the lawsuit, the original complaint came from Associate Professor of Clinical Laboratory Medicine Irwin Nash and “other aggrieved employees and individuals who were adversely affected.” Nash declined a request for comment because the litigation is ongoing.

According to one doctor who underwent the testing, multiple employees’ test results were anonymously published in a Jan. 14 paper in the Journal of the American Medical Association. While the doctor — who asked to remain anonymous to avoid retaliation by the hospital — said that the tests were likely well-intentioned, they noted that they were never asked for consent to use their test results in the Jan. 14 paper.

Standard clinical practice requires that all patients sign release forms for use of their medical data, even if that data is kept anonymous, the doctor told the News. The hospital spokesman declined to comment on the issue of consent forms.

According to the paper, 141 clinicians between the ages of 69 and 92 were tested from Oct. 2016 to Jan. 2019. Of those clinicians, 18 of them “were found to have impaired cognition, raising concerns about their clinical abilities,” and either discontinued their medical practice or moved into a “closely proctored environment.”

“All of these practitioners agreed to make changes in their practice voluntarily,” the study claims, meaning employees were not forced out of their positions if their test results caused concern. “None were referred to the Credentials Committee and no action was taken that was not voluntary.”

According to lead author of the study and Yale School of Medicine professor Leo Cooney, the policy is based on literature that points to older practitioners experiencing “more trouble” in their practice than younger doctors. As a person ages, Cooney said, cognitive function declines, but variability in cognitive function also rises between people. As a result, while two 40-year-olds likely have similar levels of cognitive function, two 80-year-olds have a higher potential for cognitive differences.

Cooney said that after putting clinicians through an initial 15-minute cognitive screening exam, doctors whose results fell short were either consulted about their practice, given a longer, more comprehensive cognitive exam, or were reappointed for one as opposed to two years.  In all 18 cases in which significant cognitive deficits were found, the employee stopped practicing.

Cooney noted that none of the 18 doctors who discontinued their medical practice had been brought to the attention of the hospital or Yale School of Medicine staff before the screening test. He added that many clinicians practice alone as opposed to a setting such as an operating room, where practice problems may be more easily detected.

“I think we’re doing the right thing,” Cooney said. “When we first started this process, I thought it was probably a good idea, [and] after three years, I think it’s essential. I think it’s essential that older clinicians be evaluated because of the increased potential of those individuals who might have problems…I’m a geriatric doctor, that’s what I do. I’m all for people continuing to practice as long as they have the ability to do so.”

The EEOC filed the suit in U.S. District Court for the District of Connecticut, requesting “compensatory and punitive damages and injunctive relief,” that includes the revocation of YNHH’s policy, according to a Feb. 11 press release by the EEOC.

Before the lawsuit was filed, the EEOC requested that the hospital revoke the policy on Aug. 15. YNHH did not take action regarding its policy, and the situation progressed to a lawsuit.

“While Yale New Haven Hospital may claim its policy is well-intentioned, it violates anti-discrimination laws,” said regional attorney for the EEOC’s New York District Office Jeffrey Burstein according to the press release. “There are many other non-discriminatory methods already in place to ensure the competence of all of its physicians and other health care providers, regardless of age.”

Yale New Haven Hospital, first named the General Hospital Society of Connecticut, was founded in 1826.

Valerie Pavilonis | valerie.pavilonis@yale.edu