Mandatory Retirement Age for Physicians: Yea or Nay?

— Ron Harman King says age alone is arguably a poor indicator of skill

by Ron Harman King, JD, MS September 3, 2023

Is it just me, or are you noticing that most people are getting a little older every day? We’re hearing about it everywhere. News coverage reminds us daily that the two leading presidential candidates are approaching or have entered their ninth decades on Earth.

In addition, five of our 100 U.S. Senators are age 80 or older, as are another 15 members of the House of Representatives. The aging Congress could be one factor in the House of Representatives just weeks ago voting to raise the mandatory retirement age for commercial pilots from 65 to 67.

The question of just how old is too old to keep working brings up the perennial topic of whether physicians, too, should be required to cease practicing by a certain age. Especially for surgeons, horror stories abound of doctors who should have hung up their lab coats years earlier.

For example, at a major Midwestern university hospital, investigators found that surgical clerks had for 6 years routinely ordered extra blood for an older surgeon whose operations were abnormally messy. These habits continued until a patient bled to death during a routine gallbladder surgery.

Mind you, some research shows a weak link between older surgeons and increased surgical complications and slower adoption of technology. Indeed, one large study of Medicare patients found that surgeons over age 60 had higher mortality rates for certain kinds of operations including coronary bypasses — but not for other procedures. Moreover, the differences were small, occurring mostly among doctors who performed few operations.

Even more compelling is a review of nearly 900,000 Medicare patients revealing that operations by older surgeons resulted in lower mortality.

Aside from surgical outcomes, there’s a big problem with forced healthcare retirement in general. Doctors overall are getting older and so are their patients. All this adds to a doctor shortage in some specialties and places.

The latest census shows that the U.S. population aged 65 and older grew at the fastest rate in more than a century. Not only is the median age of Americans increasing, but the number of geriatricians trained to care for the elderly are retiring faster than new doctors training to take their places.

In primary care, the situation is worse in other first-world countries. Approximately one in ten French citizens don’t have a referring primary care physician, and nearly one-third live in regions with poor access to primary care. In the United Kingdom, the number of doctors taking early retirement tripled in just 8 years; the average age of physician retirement there is now only 59. Anecdotally, I personally know a Canadian woman who’s been unable to get an appointment with a primary care physician in more than a quarter-century.

Then we have the legal question: Does the law allow mandatory retirement? As you might expect, the answer can be a bit murky.

In the legal profession, 31 states and the District of Columbia have set mandatory retirement ages for state-level judges ranging from 70 to 90 years as permitted by their state constitutions. On the other hand, federal judges are appointed for life.

In contrast, the federal government is prohibited from enforcing mandatory retirement of employees based strictly on age. This is perhaps the principal reason the federal workforce is older than private employees by about eight percentage points, with nearly one-third older than 55.

The federal ban on age-based mandatory retirement could be good news for Veterans Administration physicians individually, but bad news for the VA itself. The VA imposes a physician annual salary cap of $400,000, which is probably a disincentive both for new physicians to join the agency and for older ones to work longer.

For physicians in private practice, a 1967 federal law, the Age Discrimination in Employment Act, also bars mandatory retirement. However, exceptions exist for “bona fide executives” — someone spending at least 80% of work time on managerial activities.

Additionally, a 2003 ruling by the U.S. Supreme Court shields physician shareholders of private practices from forced retirement.

In a 7-2 decision, the court borrowed a six-factor test from the U.S. Equal Employment Opportunity Commission that asks, among other things, whether the shareholder reports to a superior; shares in profits, losses, and liabilities; is supervised by the organization; and can set rules controlling others’ work.

Under this test, in Clackamas Gastroenterology Associates, P.C. v. Wells, the court decided that four physician shareholders in northwestern Oregon were non-employees. Thus, they would not be sheltered from mandatory retirement.

At any rate, not one of us wants to go under the knife of a surgeon who should have long ago relinquished the scalpel. But age alone is arguably a poor indicator of skill.

So, for my money, I’m going with the proposal of Dr. Dan Vick, a pathologist and former hospital executive who put forth a framework for monitoring aging surgeons’ skills a while back.

Instead of setting a mandatory retirement age for surgeons, Dr. Vick and two co-authors of a 2021 journal article proposed compulsory, semi-annual testing beginning at age 65 of physical dexterity, cognitive skills, and hand/eye coordination. I say that this approach seems fair and balanced for patient and provider interests alike.

Meanwhile, I must add also that one of my all-time heroes is Dr. Howard Tucker, a 101-year-old Cleveland neurologist recognized by Guinness World Records as the oldest practicing physician. To boot, he also passed the bar exam at age 67 and became a lawyer in 1989.

Imagine this man’s breadth of knowledge and wisdom! If Dr. Tucker asked me to go to a concert or movie with him, I’d gleefully jump at the chance. I’d make only one stipulation — I’ll drive.

Ron Harman King, JD, MS, is CEO of Vanguard Communications, a healthcare marketing and practice management consulting firm, and the author of The Totally Wired Doctor: Social Media, the Internet & Marketing Technology for Medical Practices. He blogs for MedPage Today on the topics of technology, the law, and the patient experience.