New Jersey Board of Medical Examiners Prevails in Office-Based Surgery Litigation

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


he authority of the New Jersey Board of Medical Examiners to promulgate office-based surgery regulations was upheld by the Appellate Division of the Superior Court of New Jersey.

The New Jersey Association of Nurse Anesthetists (NJANA) had filed suit against the Board challenging portions of the office-based surgery regulations requiring physicians who do not hold hospital privileges to receive privileges via an alternative pathway prior to providing or supervising the administration of general or regional anesthesia or conscious sedation. The New Jersey State Society of Anesthesiologists (NJSSA) intervened in the litigation, and ASA filed an amicus brief on behalf of the Board.

In a well-reasoned opinion, the court recognized that the Board had the authority to regulate physicians, and while the regulation has an indirect impact on nurse anesthetists, the Board is not regulating the nursing profession, but rather its own physicians, in requiring that they have privileges to supervise nurse anesthetists. The court also stated that “anesthesia is, in fact, the ‘practice of medicine.’” 

NJANA sought a stay of the office-based regulations from the Appellate Division pending its application for certification to the Supreme Court. The Board and NJSSA opposed a stay, and the Appellate Division denied the request. NJANA may now request that the Supreme Court stay the regulations pending any decision on hearing the case. The Supreme Court has yet to rule on whether it will hear the case.

In a related matter, NJANA continues to pursue efforts to change the status of a nurse anesthetist from “registered professional nurse” to “advanced practice nurse.” NJANA’s goal is to move away from the requirement for supervision by an anesthesiologist or other physician with appropriate credentials to a collaborative practice arrangement with a physician. The Board of Nursing has yet to adopt the proposal.

Maryland Adopts Medical Liability Reform
For the first time in more than a decade, Maryland’s state legislature was called into special session by Governor Robert Ehrlich, Jr., in an effort to enact medical liability reform. Insurance rates for Maryland doctors were expected to rise by an average of 33 percent on January 1, following an average increase of 28 percent in 2004.

The governor had proposed reducing medical liability insurance premiums in 2005 with $30 million from the state budget. A House-Senate compromise bill proposed reducing premiums with more than $40 million raised in the first year by extending the state’s 2-percent insurance premium tax to health maintenance organizations (HMOs) and managed care organizations, with other proceeds from the tax benefiting the Medicaid program. The governor vetoed the bill because of the tax on HMOs and because he considered the legal reforms in the compromise bill to be insufficient. The General Assembly over-rode the governor’s veto, and the bill became law on January 11.

The new law reduces the current cap on damages for pain and suffering in wrongful death cases from about $1.6 million to $812,500; the governor had proposed a cap of $650,000. The cap on noneconomic damages in other cases is frozen at $650,000 for four years.

Liability insurance rates are permitted to increase by no more than 5 percent in 2005, and rates in future years are to be established under agreement with the Maryland Insurance Administration.