Age Discrimination in Health Care

Posted on Categories Health Care, Legal Scholarship

Among other things, the recent “death panel” controversy highlights our collective unease with the thought of elderly people being denied needed medical care based on someone else’s decision that their lives are not worth saving.  Yet, even without death panels, much research demonstrates that the elderly already suffer a great deal of discrimination in the health-care system, from the use of demeaning or patronizing language by medical personnel to disqualification from experimental treatments to dismissive responses regarding health complaints.  However, legal remedies for age discimination in health care have proven elusive.

Phoebe Weaver Williams explores ageism in health care, as well as potential remedies under the Age Act of 1975, in a pathbreaking new article recently published in the Marquette Elder’s Advisor.  She argues that legal theories developed in connection with employment discrimination litigation, such as the hostile environment theory, might be adapted for use in the health-care context.

Entitled “Age Discrimination in the Delivery of Health Care Services to Our Elders,” Phoebe’s article was published at 11 Marq. Elder’s Advisor 1.  The abstract appears after the jump. 

The problem of health care providers making age biased decisions when treating elderly patients has received considerable attention and condemnation from both medical and social science researchers. When health care providers offer inappropriate or less care to patients because of their advanced chronological age, they potentially violate the Age Act of 1975. However, a review of the cases litigated under the Age Act suggests that advocates, regulators, and elders have not used the Age Act to address even the most blatant ageist practices in health care. Using methods developed to identify unlawful discrimination under employment and civil rights laws, this article characterizes certain ageist practices in the delivery of healthcare as potential violations of the Age Act of 1975. It concludes that regulators should undertake certain reforms so that elderly patients and their advocates can make better use of the Age Act’s protections.

10 thoughts on “Age Discrimination in Health Care”

  1. The elderly, people living with HIV/AIDS, members of the Lesbian Gay Bi-sexual Transgender (LGBT) community, illicit drug users, and those with mental health disorders top the list of those most likely to face prejudice in a health care setting, however, anyone can be the target of discrimination in health care. One of the ways that health care discriminates is by diagnosing patients with Borderline Personality Disorder (BPD).

    In 1992, George E. Vaillant, M.D. “argued that the [Borderline Personality Disorder] diagnosis is primarily used by clinicians to label patients they do not like. . . . Clinical leaders from the Stone Center argued that the label misleadingly conveys that the patients are angry and manipulative and that it therefore interferes with the clinician’s empathetic availability for patients who are often better conceptualized as trauma victims (Jorden et al.1991; Stiver 1991). They are joined by Heller (1991), who argued that because the borderline label ‘implies a character problem’, it causes doctors and therapists to shun patients with BPD rather than provide – meaning in Heller’s view, pharmacological – therapies. Both the Stone Center and Heller agree that the BPD label assigns too much accountability for socially undesirable behaviors.” (Gunderson, M.D., John with Links, M.D., F.R.C.P.C., Paul S. Borderline Personality Disorder: A Clinical Guide, Arlington, VA: American Psychiatric Publishing, Inc., 2008.)

    In our society, authority is “free” to build someone up and tear another person down. While prejudice should not exist anywhere, it is important that we take action to remove it from health care, as there must be one entity in our society where a member of the public can turn for help without facing prejudice. Traditionally, this has been the purpose of religion, however, as an increasing percentage of the public lose their association with religion, medicine is the logical entity which humans can use as a sanctuary. Because of factors such as cradle-to-grave electronic medical record (EMR) technology, migration to the disease model in drug policy, and a greater number of medical students with the propensity to chose their profession based on anticipated personal gain rather than embracing the challenges of a demanding vocation — not to mention the incidence of medical malpractice that already exists — there really is nowhere for someone to turn.

  2. It’s a shame that we need to fall back on senior medical care laws in order to get our elders treated with the proper care and respect they deserve. Shouldn’t doctors, nurses and caregivers do that automatically? Didn’t they take an oath?

  3. Unfortunately! market forces are at work in the delivery of health care to the elderly.

    While the elderly on Medicare/Tricare etc.. and “Advantage” or “Plus” policies from private insurance companies are product for profit up front, when these elderly patients take too long to die, they become a financial burden to the for-profit health-care system and to government.

    The concept of the voluntary DNR/DNI is meant to take the burden off of the system when the elderly elect and consent to die sooner, rather than later, with election of DNR/DNI in an advanced directive or living will. The advanced directive/living will that permits DNR/DNI will mean that expensive intervening life-saving procedures will not be offered to the elderly patients, and the government and private insurers will save money and preserve profits.

    The DNR/DNI Code status is possible because of the DNR/DNI that is the product of the consent of the competent patient or in the case of the incompetent patient, the legal surrogate, as expressed in the Advanced Directive or Living Will.

    The problem is that many patients, including the elderly, do not elect to make advanced directives or living wills. Under current law, these patients are supposed to be full Code in hospitals because they haven’t consented to an exception to full code care –full code meaning that everything will be done by the hospital to save the life of the patient.

    While the implication of federal and state laws is that Code status should always be the product of the consent of the patient or the legal surrogate, a loophole in the law in the form of “oral” statments made to physicians, etc.. which has allowed the unilateral placement by the physician/hospital of DNR/DNI in the hospital and nursing-home charts of elderly patients who are taking too long to die and who have NOT elected DNR/DNI by means of a living will or advanced directive.

    We cannot know the extent of the “stealth euthanasia” or “early exit” of the elderly for the purpose of capping treatment costs because why would survivors ever look in the hospital chart to discover the DNR/DNI status that withheld a life-saving procedure. The death of elderly and sick patients in hospitals is accepted as the normal course of events. These deaths which are not the product of the consent of the elderly patient or the legal surrogate are rationalized as compassionate and expedient by the physicians and the hospitals and appear to be protected by the upper echelons of management and health-care policy.

    Truly! the only way the elderly can protect themselves in the hospital is to confirm their legal rights to full code upon entry into the hospital and then negotiate a DNR/DNI if they want to after consultation with the physician(s) as to the options available to them.

    Life is precious, and even the elderly (or especially the elderly) should have the right to freely choose the terms under which they will live and die.

    Isn’t the preservation of the rights of individuals central to the promise of our democracy of liberty and justice for all?

  4. If elderly Medicare patients started turning up at hospitals asking for “full code” coverage as is their right under existing law(s) — what would the hospitals do?

    Hospitals fight to survive financially and to be paid by Medicare/Tricare, Medicade, and the private insurers. They are not paid by Medicare for “medical” mistakes or by the private insurers for medical mistakes. Elderly patients present more risk for them in terms of the opportunity for medical mistakes, etc. falls, senility, etc.. .If the elderly patient dies during an intervening life-saving procedure, is this considered a medical mistake? I don’t know! Yet, under existing law, the elderly patient has a right to the intervening life-saving procedure if he/she wants to try to live to another day, week, month, year or years.

    Do hospitals overtly ignore the current laws and in actual practice deny full code coverage to these elderly and terminally “old” and often terminally “ill” patients? Would the hospitals be confident that the courts and their state laws would support their denial of full code coverage to Medicare patients? —And that the hospital’s denial of full coverage wouldn’t be treated as unauthorized passive euthanasia by the courts, under existing law?

    Or, would the hospitals act covertly, in defense of their bottom lines and financial survival, and passively euthanize the elderly medicare patients without their informed consent –knowing that the courts would probably never look at this scenario either.

    Obviously, the Patient Self-Determination Act in the early 90’s was intended to encourage the elderly on Medicare to elect to NOT undergo certain life-extending procedures at the end of their lives. Obviously, the “powers that be” knew that elective and consentual euthanasia would save the government and the insurers money and enhance the profits earned on the treatment of the elderly who have Medicare and, often, private insurance that supplements or replaces original Medicare.

    Why have their been no lawsuits in the courts for age discrimination in the delivery of health care. Obviously, there is a different standard for delivery of healthcare to the elderly than to younger patients that has been in existence for a long time –and maybe there should be a different standard of care because “age” is a comorbidity factor that bears both on the treatment of the elderly patient and on the odds of survival and the time left for the elderly patient after the invervening life-saving procedure.

    The conflict presented by the two laws, The Right to Live, on one hand, and The Right to Die, on the other hand, is intensifying. But, will the courts have anything further to say? I don’t think so! Fiscal concerns will win.

    The only premise that both the pro-euthanasia and the anti-euthanasia pro-life groups appear to agree on now is that the informed consent of the competent patient or his/her legal surrogate is a current requirment for hospital euthanasia under existing law.

    The slippery slope is that public policy under the radar and outside of the courts will encourage passive euthanasia of the elderly that no longer requires the consent of the patient or the legal surrogate.

    What then? What happens to the promise of liberty and justice for all and the concept of constitutionally protected individual rights that has been the promise of our democracy?

  5. Part of the “public policy” that encourages euthanasia of the elderly by hospitals and physicians is, of course, the Medicare Reimbursement Formula.

    The hospitals are captured by federal policy concerning reimbursement for services rendered by hospitals and physicians. Medicare – Medicade payments are vital to the survival of most acute-care hospitals. .

    If hospitals knew they were always going to be reimbursed for the care and treatment of the elderly patients in ICU and elsewhere in the hospital, they would be very careful not to break the law of “informed consent.” But when push comes to shove and they control the “chart,”they play the game to win and game the chart.

    Unfortunately, hospitals so often have to EAT the costs of treatment of the elderly because of “error” – and/or the capped DRG (Diagnosie Related Group) reimbursement and the POA (Present on Admission) formula, etc.

    Hospitals develop policy to favor the earliest possible exit (to home or eternity)of elderly patients in order to protect their bottom lines. The life-sustaining procedure is so often a “no win” for the hospital.

    When push comes to shove and money is involved, guess who gets shoved off and sacrificed to the system, as necessary!

    Why doesn’t anyone ever investigate or write about this aspect of age discrimination against the elderly on Medicare?

  6. How about the Doctor and his personal relationship at clinics, they stop short if they suspect age enters in.

    I noticed it at about age 60. I am now 71.

    What could or should be done?!

  7. If we can accept that the private insurance companies dictate how health care, to include original “government” Medicare, is delivered in this country, we can better understand that age discrimination in health care, which has resulted in widespread secret passive euthanasia of the elderly, is driven primarily by the desire to curb end-of-life costs of treating the elderly in order to protect profits for the insurance companies and the medical profession.

    There is no doubt that the private health insurance corporations invaded government Medicare to enhance their own bottom lines and that government, for fiscal reasons, cooperated with the invasion to reduce the costs of Medicare to the taxpayers.

    The two political parties know that it is political suicide to break the promise made to the American People by making drastic cuts to Medicare. (Actually President Obama”s plea for Medicare for all citizens under a single payment plan was probably the only means of really changing the status quo of the delivery of health care in this country –and of preventing the rapid growth of passive euthanasia of the elderly in our nation’s hospitals.)

    The federal law says that there must be no age discrimination in the delivery of health care. This means, of course, that patients, no matter their age, have the legal right to seek treatments from physicians and clinics run by physicians and the physicians have the legal right to treat patients, no matter what their age and the status of their health. These clinics accept cash, insurance, and Medicare/Medicade insurance payments but probably have no legal obligation to accept patients that don’t have cash or insurance –as do the hospitals under “emergency” law. Good insurance coverage, unfortunately, does not save the elderly from public policy that promotes passive euthanasia.

    Physicians who run clinics and cancer and pain centers, etc. as “for profit” or “not for profit” entities are NOT covered under the Patient Self-Determination Act passed by Congress in 1991. They have no duty under the federal law, as do hospitals, to inform a patient about the patient’s right under the law to make “end of life” choices to refuse intervening life-saving procedures by means of an advanced directive or a living will.

    Obviously, if physicians were mandated to provide “end of life” information and consultations at the time of treatment, this would mean that they would have to provide more information concerning the risks of treatment under the established concept of the law of “informed consent.”

    The loophole in the current law permits passive euthanasia on a unilateral basis because of the cooperation and the ability of the physicians and the hospitals to obtain DNR/DNIs status from elderly patients without their “informed” consent — by means of “influenced consent.”

    Because physicians can have oral and unwitnessed conversations about CPR and DNR/DNI and end of life choices with their patients within the hospitals, when patients haven’t already selected a DNR/DNI code status, the physicians are free to influence the elderly patients to their point of view that “full code” (CPR status) is “futile” and harmful and that the comfort delivered by DNR/DNI status or “comfort care,” i.e., “palliative” care, is the way to go. It is just incidental, of course, that this “comfort care” is a lower standard of care that can be delivered at less cost and that often leads to an earlier death for the elderly patient which also caps the costs of treatment.

    The hospitalist or the admitting physician can immediately place DNR/DNI status in an elderly patient’s chart after these often unwitnessed conversations with the patient in the hospital room. Physicians are urged by the hospitals and Medicare reimbursement policy to obtain permission for DNR/DNI code status in keeping with the concept of the futility of keeping elderly patients alive for unknown periods of times at great expense to the insurers and the hospitals and government Medicare.

    What can be done? Hospitals could require the physicians to obtain signed and witnessed consent of the patient to the DNR/DNI status placed by the physicians in the patient’s hospital chart. This would not prevent influenced DNR/DNIs but it would prevent secret DNRs/DNIs that are placed in hospital charts without the patient’s knowledge or informed consent.

  8. If we can believe what the New York Times said in a HEALTH article written by Gina Kolata on June 28th, 1997, entitled “Passive Euthanasia in Hospitals Is the Norm, Doctors say,” we can understand the increasing danger that the elderly NOW face in U.S. hospitals because of reimbursement policies of Medicare/Medicaid and the private insurers — and because of the loop-hole in existing law.

    The ugly reality is that cost constraints have already increased passive euthanasia of the chronologically old in U.S. hospitals for many years without the patients’ “informed” consent. Informed consent doesn’t always work in favor of the hospital if the elderly patient elects to undergo a life-extending or life-sustaining procedure that is his/her legal right under existing law.

    Do hospitals rationalize that it is better not to seek the informed consent of the elderly and “terminal” patient or his legal surrogate because if the patient makes the wrong decision and wants intervening life-saving or life-sustaining treatment, they may have to eat the costs? Who knows the extent of covert DNR/DNIs placed in hospital charts. How would they ever be discovered?

    Notice that this Article was written fourteen years ago — about the time that public policy to prevent the elderly from dying in the nation’s ICU’s was being studied and developed. Hospice and palliative care became the government’s “final” solution to managing the growing and exhorbitent “end of life” costs of the increasing population of the elderly in the United States.

    We note, however, that the elderly remain products to be managed and treated for profit up front and before the ends of their long lives. Rationing of currative treatment of the elderly is said to be evil by the for-profit health industry but “rationing” of life-extending procedures and life-sustaining care is the norm — because it is compassionate and fiscally expedient because it cuts and caps end-of-life costs for the elderly.

    Age discrimination against those elderly who don’t enter the hospitals with Living Wills or Advanced Directives and who don’t make an election for a witnessed DNR/DNI in the hospital under the 1991 Patient Self Determination Act upon entering the hospital is growing because of the loop-hole in the law.

    This loop-hole that permits physicians to have bedside unwitnessed oral conversations with elderly terminal patients and then, personally, place DNR/DNIs in the hospital chart invites abuse. This loophole needs to be closed in keeping with federal and state laws governing the right to live and the right to die.

    While, hopefully, physicians are always driven by their duty and compassion for the elderly and dying patient, reimbursement costs for the hospital are also an important factor that may influence their judgements.

    Does “managed death” sometimes become “killing for dollars?” Is Medicare “hospice” sometimes a subsidy of nursing homes’ and hospitals’ bottom lines? Is palliative care anything more than the ice layer on the slippery slope?

    This loop-hole in the law hasn’t been closed because, of course, there has been no litigation or case law made concerning covert or unauthorized DNRs/DNIs put in the hospital charts by physicians. Are we any different than the Germans who developed public policy to kill the Jews that was advanced to the German people as a final solution to their problems?

    Tough questions for the lawyers, law schools, and for the bio-ethicists! But shouldn’t the greatest democracy in the world be able to face these questions and find better answers?

  9. Discrimation and Doctors. I was just recently told by a psychiatrist that they don’t treat patients under 18 and over 60. I’m 65 and never have I seen such a thing. Legally what I can do about it? Also, the fact that this woman teaches interns — with her attitude, this is not a good thing. How come every other business in the USA has to deal with the EEOC? Isn’t this doctor running a business? BTW, she won’t take medicare and I saw no insurance she takes. Do no harm??? She harmed me, and if I can I want to make sure everyone knows about it. What’s she going to say when she is 60? It’s blatant discrimination. I can understand an unruly patient but this…can you help with some words of advice?

  10. What does a senior do when they go to an ER with awful pain in their foot that is bruised and swollen? And not one doctor came in to look at her even though she was the only patient in there at the time. She was released to go back to work next day with a sore ankle. An X-ray was taken but apparently not read as they just wrapped her foot with an ace bandage. Her foot was broken.

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