North Carolina Nursing Board Seeks to Overturn Physician Supervision of Nurse Anesthetists

S. Diane Turpin, J.D., Assistant Director
Office of Governmental Affairs


The North Carolina Board of Nursing filed a lawsuit on August 6, 2003, seeking to overturn a position statement adopted by the medical board related to office-based surgery. The nursing board objects to language in the position statement requiring physician supervision of nurse anesthetists. The nursing board alleges that the physician supervision requirement violates a 1994 Consent Order involving the nursing board, the medical board, the North Carolina Society of Anesthesiologists and the North Carolina Medical Society regarding nurse anesthetists’ scope of practice.

Prior to the 1994 Consent Order, the nursing board proposed regulations to allow nurse anesthetists to perform anesthesia services in collaboration with a physician. The consent order required the nursing board to amend its proposed scope of practice to include language that says nurse anesthetists “may not prescribe a medical treatment regimen or make a medical diagnosis except under the supervision of a licensed physician.” The medical board and the attorney general have interpreted this language to require physician supervision of nurse anesthetists. The board of nursing alleges that the consent order merely requires nurse anesthetists to collaborate with a physician. While the litigation is focused on the office-based surgery position statement, at its core is an attack on the underlying requirement for physician supervision of nurse anesthetists in all settings.

Ohio Adopts Office-Based Surgery Regulations
On August 13, 2003, the Ohio Medical Board adopted office-based surgery regulations effective January 1, 2004. The regulations do not apply to office surgeries or special procedures in which the level of anesthesia is limited to minimal sedation or which use only local or topical anesthetic agents. Liposuction procedures performed under tumescent local anesthesia are subject to the regulations as are procedures or surgery utilizing moderate sedation/analgesia or anesthesia services. Procedures or surgery utilizing moderate sedation/analgesia or anesthesia services are permissible in the office setting on patients classified as ASA physical status 1 or 2.

Nurse anesthetists are required to be supervised by a physician. Physicians must have certain anesthesia qualifications regardless of whether a nurse anesthetist or anesthesiologist administers the anesthesia. A physician performing surgeries or procedures using moderate sedation/analgesia must hold privileges to provide moderate sedation/analgesia in a local, accredited hospital or local, licensed ambulatory surgical facility or must complete at least five hours of category 1 continuing medical education (CME) relating to the delivery of moderate sedation/analgesia during the current or most recent past biennial registration period. A physician performing surgeries or procedures using anesthesia services must hold privileges to provide anesthesia services in a local, accredited hospital or local, licensed ambulatory surgical facility, or must complete an accredited residency training program in anesthesiology, or must complete at least 20 hours of category 1 CME relating to the delivery of anesthesia services during the current or most recent past biennial registration period.

The regulations also require office settings to be accredited within three years of the effective date of the rule.

Governor Bush Signs Medical Liability Reform
After months of debate and three special sessions, the Florida legislature passed a medical liability reform measure that was signed into law by Governor Jeb Bush on August 14, 2003. Physicians had sought a $250,000 cap on noneconomic damages and question whether this law will do enough to stem the tide. Insurers also question whether the reforms will allow for the reduced insurance rates. Meanwhile the trial bar has vowed to mount a constitutional challenge to the law.

The law caps noneconomic damages at $500,000 for each physician with an aggregate cap of $1 million for all claimants. For hospitals, health maintenance organizations and others, noneconomic damages are capped $750,000 with an aggregate cap of $1.5 million for all claimants. The cap could be pierced in nonemergency situations, up to $1 million from all physicians regardless of the number of claimants in cases involving death, permanent vegetative state or other extraordinary circumstances involving catastrophic injuries where a judge determines it would be a manifest injustice not to exceed the cap. For nonpractitioners, e.g., hospitals, the cap could be pierced up to $1.5 million in these extraordinary circumstances. For cases arising from the emergency room, the cap on noneconomic damages is set at $150,000 (aggregate $300,000); for emergency room facilities, the cap is set at $750,000 (aggregate $1.5 million).

The law includes numerous provisions designed to improve patient safety, including a requirement for hospitals to implement patient safety plans and systems, to have patient safety officers and to notify patients immediately when adverse incidents occur.

The medical liability insurance premium rate freeze is to remain in place until new, reduced rates are filed and approved for January 1, 2004.