October 2002
Volume 66 |
Number 10
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STATE BEAT
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Florida Amends Office-Based
Anesthesia Requirements
S. Diane Turpin, J.D., Assistant
Director
Office of Governmental Affairs (State)
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In an abrupt turnabout, after spending several years developing
the office-based surgery and anesthesia regulations, the
Florida Board of Medicine has relaxed one provision of the
regulations. Prior to late July, the regulations required
anesthesiologist participation in all Level III office surgeries.
Level III surgeries are defined as those that require general
or regional anesthesia. The Board of Medicine has maintained
this requirement but recently established guidelines whereby
the Surgical Care Committee and the Board of Medicine may
determine that a surgeon is competent to supervise a nurse
anesthetist in Level III procedures, thereby alleviating
the need to conform to the requirement for anesthesiologist
participation. In such cases, the surgeon would be granted
a waiver from the requirement that an anesthesiologist must
participate in the Level III cases. Some of the factors
that may be considered in evaluating a surgeon's request
for a waiver include:
Board certification by an approved certifying board; competency
assessment to supervise nurse anesthetists by university-based
medical school program; advanced cardiac life support certification;
physician office registration, inspection or accreditation;
continuing medical education (CME) hours in office-based
anesthesia and office-based specialty; CME in anesthesia
at a university or medical school setting with competency
examination at conclusion of CME; successful completion
of three-month, full-time program in anesthesia in a university
teaching hospital; demonstrated completion of 500 surgeries
involving nurse anesthetist supervision, at least 250 of
which involve Level III procedures during prior two-year
period; completed review of 20 percent of the procedures;
number of adverse incidents during prior two years; licensure
status; disciplinary history; medical malpractice history;
financial responsibility; education; board certification;
and hospital privileges.
The regulations also allow for the consideration of additional
items. The regulations do not suggest how the Florida Board
of Medicine will weigh these factors and do not indicate
whether a physician would be required to meet more than
one of these factors to be granted a waiver.
Proposed Expansion of Nurse Anesthetist Scope of Practice
Defeated in Montana
In Montana, the Board of Nursing proposed regulations
that would have expanded the scope of practice of nurse
anesthetists. Under the proposed regulations, nurse anesthetists
would have been "independent and/or interdependent"
practitioners. The proposed regulations also would have
required nurse anesthetists to have prescriptive authority
and to practice in accordance with American Association
of Nurse Anesthetists' guidelines.
The Montana Society of Anesthesiologists vigorously opposed
the proposed regulations and argued that the Board of Nursing
did not have the statutory authority to expand the scope
of practice of nurse anesthetists. The Montana society also
brought this matter to the attention of state legislators.
The Board of Nursing ultimately withdrew the proposed regulations,
and an interim study committee of legislators is holding
hearings on the Nurse Practice Act and the authority of
the Board of Nursing to promulgate regulations.
Furthermore, Governor Judy Martz stated that she "was
unable to reach a conclusion that access to health care
and patient safety would change by my decision on whether
or not to opt out of this federal requirement [of physician
supervision of nurse anesthetists]." Governor Martz
has asked the Board of Medical Examiners and Board of Nursing
to establish a committee "to better define the lines
of authority and responsibility" between the physician
and the nurse anesthetist.
Nevada Tort Reform Legislation Signed Into Law
Nevada's Governor Kenny Guinn called a special legislative
session this summer to address the growing medical liability
crisis. Within three days, the legislature passed a tort
reform bill that was signed into law by the governor. The
bill establishes a $350,000 cap on noneconomic damages awarded
to each plaintiff from each defendant except in certain
circumstances. The exceptions include 1) cases in which
the conduct of the defendant is determined to constitute
gross malpractice; or 2) cases in which following return
of a verdict by the jury or finding of damages by a bench
trial, the court determines by clear and convincing evidence
that an award greater than $350,000 is justified because
of exceptional circumstances.
Under the bill, a defendant cannot be held liable for noneconomic
damages that exceed the amount of money left in the defendant's
professional liability insurance policy minus economic damages
that have been awarded. There is no limit on economic damages.
The limits on noneconomic damages apply if the defendant
has obtained professional liability insurance coverage of
at least $1 million per occurrence and $3 million in the
aggregate. Coverage is not mandatory for licensure.
The law also provides for a $50,000 cap on civil damages
for liability arising from trauma care.
The law abolishes joint and several liability for noneconomic
damages. Defendants can only be held liable for that portion
of the judgment that represents the percentage of negligence
attributable to them. Joint and several liability still
applies to economic damages. The law also provides for a
mandatory affidavit of merit when the action is filed and
for a mandatory settlement conference.
Under the new law, effective October 1, 2002, expert testimony
must be given by a provider who practices or has practiced
in a substantially similar area to the type of practice
engaged in at the time of the alleged negligence.
The law requires mandatory reporting of sentinel events
by any employee of a hospital, obstetric center, ambulatory
surgical center or independent center for emergency medical
care. "Sentinel event" is defined as "an
unexpected occurrence involving death or serious physical
or psychological injury or the risk thereof, including without
limitations, any process variation for which a recurrence
would carry a significant chance of a serious adverse outcome.
The term includes loss of limb or function.
The law will be subject to legal challenges, and it is
uncertain whether this approach will stabilize malpractice
insurance rates enough to allow physicians to continue to
practice in Nevada.
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