Henry Ford Health doctor sues over age-based screening assessment for cognition

A Henry Ford Health ophthalmologist is suing the health system over a policy requiring an assessment based solely on age, starting with those who are age 70, according to the federal lawsuit.

Dr. Lylas Mogk filed the lawsuit against Henry Ford Health and Henry Ford Medical Group in U.S. District Court in Detroit last month pursuant to the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and the state's Elliott-Larsen Civil Rights Act and Persons With Disabilities Civil Rights Act.

Mogk, 84, of Grosse Pointe Park, has been employed by Henry Ford Health since January 1995 and is the founder and immediate past director of the Henry Ford Center for Vision Rehabilitation and Research. She's also a member of the Henry Ford Medical Group and subject to the group's policy on senior and bioscientific staff fitness for duty, which took effect in 2017, according to the complaint filed in court.

The policy requires that "all members of HFMG who have reached 70 years of age will have screening assessment for cognition. This assessment is solely based on age. This evaluation will be repeated at age 75 and annually thereafter," the lawsuit says. It also states the cognition assessment will be done by the health system's behavioral services department. If further evaluation is required, the Henry Ford Medical Group member will be required to have a full evaluation of fitness for duty performed by an independent assessor.

"IF an HFMG member fails to comply with the age-based screening requirement, the employee will voluntarily resign or be terminated," according to the complaint filed in court.

Yale School of Medicine faces similar allegations

The lawsuit, which Mogk's lawyers seek to be certified as a class action, says Mogk underwent the screening assessment in March 2018 solely because she reached 70 years of age "and for no other reason."

The lawsuit is asking the court to block the defendants from continuing to use the policy and award Mogk and other plaintiffs in the class back pay/damages for lost earnings for any compensation lost as a result of the policy.

Mogk's attorney, John Runyan, said he and Mogk had no comment.

Lauren Zakalik, spokesperson for Henry Ford Health, said it cannot comment on pending litigation.

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Mogk specializes in low vision and visual rehab and is the chair of the Michigan Commission for Blind Persons, adviser to the Michigan Bureau of Services for Blind Persons and the past chair of the American Academy of Ophthalmology Vision Rehabilitation Committee, according to her biography on the Henry Ford Health website.

This isn't the first federal lawsuit related to age-based cognition screening for physicians.

The U.S. Equal Employment Opportunity Commission filed a lawsuit in 2020 alleging that Yale New Haven Hospital, the teaching hospital of Yale School of Medicine, adopted and implemented a discriminatory policy that required anyone age 70 and older who applied for or sought to renew staff privileges at the hospital take both neuropsychological and eye medical examinations. Employees younger than 70 years old were not subject to these requirements, according to a release announcing the lawsuit.

The EEOC stated by subjecting older hospital applicants and employees to the policy, the hospital violated the Age Discrimination in Employment Act and the Americans with Disabilities Act. The case is pending in U.S. District Court in Connecticut.

"While Yale New Haven Hospital may claim its policy is well-intentioned, it violates anti-discrimination laws," Jeffrey Burstein, a regional attorney for the EEOC's New York District Office said in the 2020 release announcing that lawsuit. "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."

In 2012, Stanford University Medical Center announced a policy for evaluating "late-career practitioners." It stated that physicians age 75 or older who practiced at Stanford Hospital and Clinics or Lucile Packard Children's Hospital were required to undergo evaluations to confirm they were able to continue performing their clinical responsibilities effectively, according to a release at that time.

AMA: 'Age alone should not be a precipitating factor'

Those age 74½ or older applying for medical privileges at the hospitals and current medical staff age 75 or older were to undergo a physical exam, cognitive screening and peer assessment of their clinical performance every two years to retain hospital privileges.

Three years later, the Stanford Daily student-run newspaper reported that the university's faculty senate passed a motion recommending university leadership end the screening processes and turn to uniform competency testing.

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The American Medical Association's policy states that guidelines for screening and assessing physicians should be based on evidence "of the importance of cognitive changes associated with aging and other factors that may impact physician performance. Some physicians may suffer from declines in practice performance with advancing age, acquired disability or other influences. Research suggests that the effect of age on an individual physician's competency can be highly variable. Since wide variations are seen in cognitive performance with aging, age alone should not be a precipitating factor."

There are 682,478 physicians in clinical practice who are 65 and younger in the U.S. and 21,213 in clinical practice in that age group in Michigan, according to AMA data provided by spokesperson Jennifer Sellers.

According to the data, 139,565 U.S. physicians in clinical practice are ages 66 to 75; 28,785 are age 76 to 85, and 2,515 are 86 and older.

In Michigan, the AMA data shows 4,166 physicians who are age 66 to 75; 914 who are age 76 to 85, and 93 who are 86 and older.

Most Michigan health systems don't test based on age

"We don't support testing based on a fixed age," said Dr. Tom George, CEO of the Michigan State Medical Society and an anesthesiologist in practice for 38 years in Kalamazoo.

McLaren Health Care Spokesman David Jones said the health system has no such corporate policy. Michigan Medicine doesn’t have a screening for cognition based on age, spokesperson Mary Masson said.

Corewell Health, the state’s largest health care system, said it does not have a systemwide policy requiring cognitive screening assessments based solely on age. It said its physicians "must be fully credentialed — which requires renewing their medical license every three years, including continuing medical education."

George said the Michigan State Medical Society does not oppose testing or reporting impaired physicians, but that could be for a variety of reasons. He said there is a requirement of licensing to report instances of impairment, not just cognitive impairment, adding the most likely cause of impairment would be situations such as substance abuse and fatigue.

He said he has been familiar with physicians who have been reported "but it's almost always been because of substance abuse. I can't think of any physician that I know ... offhand, that has had to be reviewed or investigated because of cognitive issues."

George said while abilities change as people age, many physicians self-regulate and narrow their practices as they age. George, 66, said a couple of years ago he stopped working overnight as it was too hard to stay up and alert and awake at 3:30 a.m. caring for a trauma patient.

He said he knows surgeons who don't operate anymore because they don't want to stand on their feet for long, complicated operations. But those who are older or at the end of their careers might work in the office with other surgeons, help manage the office and see patients for post-surgical visits.

Also, he said, there are four mechanisms that screen or ask physicians whether they are able to practice competently: licensing, getting malpractice insurance, hospital credentials and board recertification.

"We have an interest, society has an interest ... in both things. We want to protect the public, it's true, from physicians that may have cognitive problems, but we also have a shortage of physicians and nurses and other health care providers. So, we also want to enable them to practice appropriately, if possible, as they age in an appropriate manner. So, we're trying to balance both of those things," George said.

Contact Christina Hall: chall@freepress.com. Follow her on Twitter: @challreporter.

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This article originally appeared on Detroit Free Press: Henry Ford Health doctor sues over age-based screening assessment for cognition