Scope-of-Practice Issues Heard in the Courts

S. Diane Turpin, J.D.
Associate Director of Governmental Affairs


urse anesthetists continue to file legal challenges to office-based surgery regulations throughout the country. Florida has seen more than its share of such litigation.

In a recent decision by the 4th District Court of Appeal, the court held that the Board of Medicine’s regulation requiring that an anesthesiologist supervise the administration of anesthesia in Level III cases in the office setting exceeded the board’s authority. Level III cases are those defined as using general anesthesia or major conduction anesthesia and preoperative sedation. In a prior case in the 1st District Court of Appeal, the court upheld this same provision. The conflict over this provision has continued although the board will review a surgeon’s petition for a waiver or variance from the rule. The regulation states, “If the anesthesia provider is not an anesthesiologist, there must be a licensed M.D. or D.O. anesthesiologist, other than the surgeon, to provide direct supervision of the administration and maintenance of anesthesia.” The board published guidelines in 2002 to be used to evaluate a surgeon’s ability to supervise the administration of anesthesia. These guidelines and the complete text of the office-based surgery regulation may be found at <www.ASAhq.org/Washington/oba-fl.pdf>.

Litigation brought by nurse anesthetists over physician supervision requirements continues in Illinois, New Jersey and North Carolina.

Litigation brought by an anesthesiologist assistant (AA) against the State Medical Board of Ohio challenging the scope of practice for AAs has been resolved, at least initially, in favor of the AA. In 2000 the Ohio legislature passed legislation to license AAs and establish a scope of practice. The scope of practice as set forth in Ohio Revised Code Section 4760.09 reads as follows:

If the practice and supervision requirements of section 4760.08 of the Revised Code are being met, an anesthesiologist assistant may assist the supervising anesthesiologist in developing and implementing an anesthesia care plan for a patient. In providing assistance to the supervising anesthesiologist, an anesthesiologist assistant may do any of the following:

• Obtain a comprehensive patient history and present the history to the supervising anesthesiologist;

• Pretest and calibrate anesthesia delivery systems and monitor and obtain and interpret information from the systems and monitors;

• Assist the supervising anesthesiologist with the implementation of medically accepted monitoring techniques; [emphasis added]

• Establish basic and advanced airway interventions, including intubation of the trachea and performing ventilatory support;

• Administer intermittent vasoactive drugs and start and adjust vasoactive infusions;

• Administer anesthetic drugs, adjuvant drugs and accessory drugs;

• Assist the supervising anesthesiologist with the performance of epidural anesthetic procedures and spinal anesthetic procedures; [emphasis added]

• Administer blood, blood products and supportive fluids.

The medical board incorporated these provisions as written above in its regulations. The medical board regulations also contained the following provision (Section 4731-24-04[B]) at the heart of the litigation:

Nothing in this chapter of the Administration Code of Chapter 4760 of the Revised Code shall permit an anesthesiologist assistant to perform any anesthetic procedure not specifically authorized by Chapter 4760 of the Revised Code, including epidural and spinal anesthetic procedures and invasive medically accepted monitoring techniques. For purposes of this chapter of the Administrative Code, “invasive medically accepted monitoring techniques” means pulmonary artery catheterization, central venous catheterization and all forms of arterial catheterization with the exception of brachial, radial, and dorsalis pedis cannulation. [emphasis added]

The AA argued essentially that the language in the regulation prohibiting AAs from “performing” epidural and spinal anesthetic procedures and invasive, medically accepted monitoring techniques was in conflict with the statutory language that permits AAs to “assist” with epidural and spinal anesthetic procedures and invasive, medically accepted monitoring techniques.

Ignoring the question of why the legislature chose to use the term “assist” with respect to two of the eight items specified as being within the AA’s scope of practice, the court focused on the legislature’s failure to specifically prohibit AAs from performing these procedures. The court also latched on to the training requirements as set forth in the statute that referred to the training requirements of the AA program necessary for an AA to be certified. These programs included clinical experience in the areas of indwelling vascular catheter placement, including intravenous and arterial catheters, administration and maintenance of volatile anesthetics, narcotics, hypnotics, anesthetic agents and muscle relaxants, patient monitoring and regional anesthetic techniques. These factors, combined with some language in the regulations whereby the court interpreted “assist” to mean “carry out,” led the court to hold that the medical board had exceeded its delegated authority with respect to the limitations on the practice of AAs. As a result, Section 4731-24-04(B) is invalid, and AAs are permitted to perform epidural anesthetic procedures and spinal anesthetic procedures and implement medically accepted monitoring techniques. An appeal is likely.