Scripps Clinic Must Pay Almost $7M to Older Docs in Age Bias Case

Health system policies that force older doctors to retire at a certain age may soon be history after the U.S. Equal Employment Opportunity Commission’s decision this week targeting Scripps Clinic Medical Group in San Diego.

Under the agreement, the 750-physician group based in La Jolla, California, will pay affected doctors a total of $6.875 million. The agency said the group’s 2014 policy, which required doctors age 75 and older to retire, violated federal laws barring age discrimination.

A spokeswoman for the medical group, Michelle Setterberg, said the 2014 policy “was put in place to enhance patient safety.” It was and is allowed by a specific California government code that lets medical groups establish 70 as a mandatory retirement age.

Setterberg said the EEOC took the position that while such a policy is expressly legal under California law, it is not allowed under federal law, and the medical group rescinded the age cutoff in 2018 after it came under EEOC review.

She emphasized that Scripps Clinic doctors “do not believe our policy was unlawful, but did not wish to be involved in litigation with the EEOC.”

She declined to say how many doctors were forced to retire under the policy, or how many doctors will receive the settlement money, but said it was very few.

She added that by age 75, “most doctors have retired and those who have not almost always have voluntarily limited their practice.”

The EEOC agreement specified that the group was not admitting liability.

In a press release, the agency’s chair, Charlotte A. Burrows, noted that because many people remain in the workplace longer, “it is critical for employers to understand the ADEA’s [Age Discrimination in Employment Act of 1967] protections for older workers. For that reason, the Commission has included discrimination against older workers among the priorities identified in its new Strategic Enforcement Plan.”

Issues involving the competency of older physicians have been a growing concern as the nation recovers from the pandemic, a time when many doctors decided to leave practice but many older doctors have stayed on.

According to 2019 data from the Association of American Medical Colleges, 44.9% of physicians were 55 years of age or older, but variation was wide, with 91.3% of pulmonology specialists being over age 55, but only 8.9% of pediatric anesthesiologists and 8.3% of sports medicine doctors being above that age.

Scripps Health isn’t the only health system on the hot seat for its age-related policies. The EEOC is suing Yale New Haven Hospital for requiring any clinician who applies for or seeks to renew staff privileges to take neuropsychological and eye medical exams if they have had their 70th birthday.

Also, ophthalmologist Lylas Mogk, MD, has sued Henry Ford Health in Michigan alleging age discrimination over its required cognitive assessment for employees once they reach age 70.

The EEOC settlement raises questions about other age-related retirement policies within large health systems and medical groups. Southern California Permanente Medical Group, which includes 8,000 physicians who treat Kaiser Permanente patients at 16 hospitals and 197 medical offices, has a mandatory retirement age of 65. After that, physicians can no longer receive employment benefits. If they continue to work, they do so on a per diem basis, or work in administrative jobs that do not involve direct patient care.

In a statement to MedPage Today, Kaiser acknowledged that it has enforced a mandatory retirement of age 65 for general physician partners, a decision that is revisited periodically. “To date, the partnership has not voted to revise this mandate. All of the other Permanente Medical Groups are corporations and do not have a mandatory retirement age.”

San Diego-based Anesthesia Service Medical Group, which employs 290 anesthesiologists who serve San Diego-area hospitals, requires retirement after one’s 70th birthday.

Robert Hertzka, MD, former president of the California Medical Association and a now-retired anesthesiologist who worked in labor and delivery, taking a lot of night calls, retired last year at age 66, aware the group’s age requirement could soon affect him.

But also, he said, “for the kind of stuff I was doing, you know, obstetric hemorrhages in the middle of the night at Sharp Mary Birch … 68- and 69-year-olds and older don’t look so good on the witness stand if something doesn’t go great,” he said. He made the decision to retire last year and go into consulting.

Ted Mazer, MD, another former president of the California Medical Association and a now-retired otolaryngologist, said the EEOC’s decision makes sense. “I’m not surprised that this was age discrimination, because to put an age limit for retirement without any other criteria for a doctor or anybody else after they’re employed would be discriminatory.”

It’s unknown whether the EEOC decision applies to cognitive screening tests that many hospital systems and medical groups — including Scripps Health — now require before renewing a doctor’s staff privileges after his or her 70th birthday and subsequently every 2 years.

But Mazer thinks that such screening shouldn’t be based on age alone.

“I think this settlement says you can’t even just say at a certain age, we’re going to test you before we re-credential you. That would be age discrimination,” Mazer said.

He added that if health systems or medical groups want to identify doctors whose skills have declined to the point where they shouldn’t be practicing any longer, it would have to be “on the basis of someone’s observation or concern that the doctor has lost their technical or cognitive capability.” In other words, the physician should only be required to undergo testing for cause.

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