One of my group’s employed surgeons was injured and has serious weakness in his dominant hand and wrist due to radicular trauma. Before he could return, we therefore required him to be evaluated by a neurologist and an orthopedist not affiliated with our hospital. They both passed him, but when he was actually in the OR, he had to stop repeatedly and was having trouble holding instruments. He finished the case but with over an hour delay. The hospital cancelled the rest of his cases after feedback from the OR staff, and we agreed. We had a partnership meeting, and the majority vote was that he had to go for physical therapy for 3 months and then be re-evaluated, and that during that time, he would be restricted from anything other than in-office procedures. I think the majority were concerned that he might sue under the ADA, but I have real concerns about him doing anything until he is fully able.

Your concerns are well-founded. The issue of how to deal with a physician who is impaired by injury, illness, or aging tends to be become a minefield of mistakes as groups and hospitals try to bridge their responsibilities to the doctor and their responsibilities to patients.

This situation was initially handled properly. He was evaluated by physicians from appropriate specialties who also had no personal stake in the outcome. You then relied on their objective and unbiased reports, fulfilling the due diligence that you were required to exercise as fiduciaries for the partnership and for the patients that he would operate on under its aegis.

However, you now know—what the law calls “actual notice”—that office evaluations may be insufficient to prove that he can actually operate, and so an eventual assessment from a physical therapist might also be similarly limited. To schedule him based solely on that would now be negligent and would be actionable if a patient was harmed as a result.

Before restoring the surgeon to full privileges, only an OR test, either on a model with a proctor observing or on a patient with the proctor scrubbed in and ready to take over, would be sufficient to discharge your evaluational duty. That proctor should also come from outside the group to avoid bias.

There is a very serious immediate problem, though. When you decided to allow him to do some procedures on your premises without informing the patients of his limitations, you set up your participation in serial batteries.

That you will decide that a case is safe enough for him to do it is irrelevant. These patients are entitled to know, as part of an informed consent that reveals what a reasonable patient would want to know about their procedure, that the doctor operating on them has a physical impairment that limits his ability. This surgeon should not operate at all until he is fully cleared and can work alone, and fears of legal action under the ADA should not deter this.

Courts are also actually very deferential to the judgments of medical employers on the accommodation issue because patient safety is considered paramount. You need to document that there was no accommodation to his condition that could keep him on the OR schedule or even doing in-office procedures at this point. You also need to emphasize that the current limitations placed on him are geared to having him return in full if that is possible, eliminating the issue of this being punitive or a masked attempt to remove him because of his physical problems, which the ADA would bar.