An Ohio federal court recently found that a hospital did not discriminate against a 73-year-old surgeon when it required the surgeon to undergo neuropsychological and physical exams after an unfortunate patient death. Additionally, the court found the hospital did not discriminate against the surgeon and instead was practicing due diligence with patient safety when it required the aging physician to have a proctor present when conducting lower bowel surgeries. As an aging physician workforce develops, this court’s analysis is helpful for hospitals trying to ensure patient safety while still adhering anti-discrimination laws.
The Facts
A 53-year-old patient inexplicably passed away shortly following a difficult yet routine colon surgery. In response, and to ensure future patient safety, the hospital’s medical director engaged three independent surgeons to review the circumstances surrounding the patient’s death. After the review, the panel recommended that the surgeon:
- Voluntarily submit to a neuropsychological evaluation;
- Voluntarily submit to a physical exam by a physician of the surgeon’s choosing;
- Take an approved course on medical record documentation;
- Voluntarily not perform any surgeries until the first three requirements have been completed and approved by the hospital;
- Agree to not perform any lower bowel surgeries at the hospital or agree to have at least ten lower bowel surgeries proctored; and
- Undergo a six-month Focused Professional Practice Evaluation.
The surgeon refused to comply with the recommendations, and consequently, his employment abruptly ended. Following his departure, the surgeon filed a claim in federal court alleging age and disability discrimination, along with breach of contract. The court granted the hospital’s motion for summary judgment on all of the claims.
The Court’s Decision
The court found there was no age discrimination for several reasons. First, there was no adverse action to the surgeon’s employment. While the surgeon claimed he was constructively discharged from his employment, which is an adverse action, the court found that simply imposing conditions does not meet the requirements of constructive discharge, especially when the conditions imposed are not based upon an employee’s age. The court found the hospital had a legitimate non-discriminatory reason, patient safety, to impose conditions on the surgeon’s employment. Further, the outlined conditions were developed by an independent review board after the death of one of the surgeon’s patients. Finally, because the surgeon was unable to provide any evidence to depict the conditions as pretext for age discrimination, the court held there was no age discrimination on the part of the hospital.
The court also found there was no disability discrimination due to the mere fact that the surgeon never submitted to the medical examinations. Further, the court found if the surgeon had submitted to the examinations, they would have been job-related, consistent with business necessity and, therefore, permissible under the Americans with Disabilities Act.
Finally, the court granted the hospital summary judgment on the breach of contract claim because the employment contract between the hospital and surgeon provided for general oversight by the hospital. The court found this general oversight included the imposition of additional requirements if necessary. Moreover, because the impositions did not terminate the surgeon’s employment, there was no breach of contract.
Practical Takeaways
This federal court’s decision balances ensuring patient safety and proper observation of anti-discrimination laws. A hospital must follow proper due diligence in imposing requirements on its medical staff; however, the court’s decision demonstrates that these conditions are necessary for patients’ well-being. Employers should not see this as carte blanche to force testing on aging surgeons or other physicians. The lawsuit itself is a reminder of the risks associated with such practices, but the federal court decision demonstrates that employers may be justified in compelling such testing under certain circumstances.
If you have any questions, please contact:
- Claire Bailey at (317) 429-3608 or cbailey@wp.hallrender.com;
- Your regular Hall Render attorney.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
