Treating All Risks: The Cognitive and Physical Assessment of Late-Career Practitioners

• December 01, 2021

• Michael Bertoncini , Jackson Lewis
• Katherine Lam

ABSTRACT: This article focuses on a significant and timely issue: factual and legal support for the proposition that adopting late-career practitioner policies fosters safe patient care and is not per se unlawfully discriminatory. Written from the perspective of a management-side employment attorney, this article seeks to explain the following: first, the potential patient harm from late-career practitioners whose skills have eroded and second, the potential employment discrimination claims from late-career practitioners if the medical staff institutes a late-career practitioner screening policy. While statutes prohibiting employment discrimination generally protect only “employees,” some courts have found “employee” status in arrangements that were established as independent contractor relationships. Courts also have applied public accommodation statutes with analogous protections. Therefore, hospitals should be cognizant of the possibility that even nominally independent practitioners may be able to pursue discrimination claims arising out of the application of late-career practitioner policies to them.

ARTICLE TAGS

• Labor and Employment
• Medical Staff, Credentialing, and Peer Review