Physician Supervision of Nurse Anesthetists Upheld by North Carolina Appellate Court

Lisa Percy, J.D., Manager
State Legislative and Regulatory Issues


The North Carolina Court of Appeals unanimously rejected the state nursing board’s lawsuit seeking to remove the requirement that a nurse anesthetist must administer anesthesia under the supervision of a physician from the North Carolina medical board’s position statement on office-based surgery. The nursing board had argued that the position statement requiring physician supervision violated the 1994 Consent Order entered between the medical board, the North Carolina Society of Anesthesiologists and the North Carolina Medical Society (“petitioners”) because the parties consented to a collaboration standard of care. The issue on appeal was whether the consent order constituted acquiescence by the petitioners to a collaboration standard.

The court held that the petitioners did not acquiesce, and therefore, the office-based surgery position statement did not violate the 1994 Consent Order. The court’s opinion is significant in that it unanimously affirms physician supervision as the standard of anesthesia care and reaffirms the medical board’s authority to issue guidelines for physicians performing office-based surgery in the interest of public safety.

While the court did not decide which functions must be performed under physician supervision, it concluded that “physician supervision of nurse anesthetists providing anesthesia care, when that care includes prescribing medical treatment regimens and making medical diagnoses, is a fundamental patient safety standard required by North Carolina law.” The court rejected the claim that the Consent Order represented abandonment by the medical board of the physician supervision standard. The ruling relied on the medical board’s 1993 declaratory rulings regarding the scope and definition of the practice of medicine as evidence of the board’s position on supervision of nursing personnel involved in anesthesia.

The court also rejected the nursing board’s argument that the medical board must follow the consent order regardless of whether it impedes on the medical board’s obligation to regulate the activities of its licensees. The court held that the Consent Order does not prohibit the medical board’s ability to advise its licensees on the standard of care in medical practice in order to protect the public. “The Medical Board … cannot be stopped from exercising its duty to regulate the practice of medicine in the interest of the public.”

Because the ruling was unanimous, the nursing board is not granted an automatic appeal to the North Carolina Supreme Court. The full opinion can be found at <www.aoc.state.nc.us/www/public/coa/opinions/2005/040682-1.htm>.

Office-Based Anesthesia
The New Jersey Supreme Court accepted the New Jersey Association of Nurse Anesthetists’ (NJANA) petition to review the Appellate Division’s decision that upheld 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 court also granted NJANA’s request to stay the office-based surgery regulations. ASA will file an amicus brief in the behalf of the medical board and the New Jersey Society of Anesthesiologists. Oral arguments are scheduled for early May.

The Indiana Legislature enacted S.B. 225, which requires the Medical Licensing Board to adopt rules concerning office-based procedures requiring certain levels of sedation. The board must refer to the American Medical Association’s (AMA’s) office-based surgery “Core Principles” when adopting such rules.

South Dakota Opts Out
South Dakota becomes the 13th state to opt out of Medicare’s physician supervision requirements. The boards of medicine and nursing supported the opt-out. The legislature passed an independent practice bill a few years ago that was vetoed by former Governor William Janklow. Proceeding ahead with the intent to expand the nurse anesthetists’ scope, the legislature eventually passed a different bill that allowed nurse anesthetists to practice in collaboration as members of a physician-directed team. This is the law that now governs the administration of anesthesia.

Scope-of-Practice Issues
The Arkansas Legislature introduced H.B. 2613, which would have removed the existing physician supervision requirement. Nurse anesthetists would have been allowed to administer anesthesia upon the request of a physician. The Arkansas Society of Anesthesiologists, in conjunction with the Arkansas Medical Society, successfully pushed the bill to the inactive list. The sponsor subsequently withdrew the bill and recommended a study concerning the administration of anesthesia by the Joint Interim Committee on Public Health once the session ends.

States Adopt Medical Liability Reforms
Georgia and Missouri, labeled as “crisis states” by AMA, enacted medical liability reform bills.

The governor of Georgia signed S.B. 3, which limits noneconomic damages to $350,000 or $1.05 million in multidefendant cases. This bill also eliminates joint and several liability and requires each complaint alleging professional malpractice to be filed with an expert affidavit. Statements of apology and sympathy are inadmissible in court.

Missouri Governor Matt Blunt signed H.B. 393, which places a cap on noneconomic damages for all plaintiffs at $350,000, irrespective of the number of defendants. There is no adjustment for inflation. Awards for punitive damages are limited to the greater of $500,000 or five times the net amount of the judgment awarded to the plaintiff against the defendant. Additionally joint and several liability only applies to defendants who are 51 percent or more at fault.

This bill also limits which health care providers may submit medical opinions attesting to the validity of the complaint. A “legally qualified health care provider” must be licensed in the same profession as the defendant and either actively practicing or within five years of retirement from actively practicing substantially the same specialty as the defendant. This bill applies to all causes of action filed after August 28, 2005.