New Jersey Supreme Court Hears Challenge to Office-Based Surgery Regulations

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


ral arguments before the New Jersey Supreme Court were held on May 3, 2005. The court granted the petition of the New Jersey nursing board to review the Appellate Division’s decision that upheld the office-based surgery rules. Background information concerning this lawsuit is discussed in the February 2005 ASA NEWSLETTER. Two hours of questions were posed by the justices of the attorneys representing the nursing board, nurse anesthetists, medical board, anesthesiologists and assistant attorney general.

The justices challenged the nurses’ contention that the Board of Medical Examiners was not authorized to regulate a physician’s office. Additionally the justices asked whether evidence existed to support the nurses’ claim that the lawsuit is not a patient safety issue, but rather one of economics. When questioning the attorneys representing the medical community, the attorneys responded to challenges as to whether the continuing medical education requirements of a surgeon to deliver anesthesia provided sufficient training to administer anesthesia compared to the training that a nurse anesthetist receives. The attorneys were repeatedly asked whether a problem in the office setting existed to warrant developing such regulations.

A decision is expected in the next few months.

Office-Based Surgery Proposed Regulations
Two states recently proposed office-based surgery rules, Oregon and Kansas. The Oregon Board of Medical Examiners proposed rules that would require accreditation if the facility provides procedures or surgery that require conscious sedation, deep sedation or general anesthesia. Physicians (M.D., D.O. or podiatrist) and physician assistants (PAs) would hold privileges at a hospital or ambulatory surgical center. For procedures or surgery requiring general anesthesia, at least two advanced cardiac life support (ACLS)-trained practitioners would be on the premises until the patient is discharged. The anesthetic provider could not function in any other capacity during the procedure, and nurse anesthetists would be supervised by the surgeon.

With respect to conscious sedation, sedation would be administered by a qualified practitioner (surgeon, anesthesiologist, nurse anesthetist, registered nurse [RN] or PA). RNs who administer or monitor sedation would be under the direct supervision of the surgeon, have documented competence in administering/monitoring parenteral sedatives and be ACLS-trained. The physician who performs the surgical or anesthetic procedure could evaluate the patient’s condition and risks and be satisfied that the procedure is within the facility’s capabilities and scope of practice of the health care providers. The preanesthetic exam should be conducted 30 days prior to the procedure. Procedures involving conscious sedation, deep sedation or general anesthesia that result in death or anesthetic/surgical complications requiring resuscitation or emergency transfer would be reported within 10 days of such occurrence. A physician would remain immediately available until the patient meets discharge criteria. The physician who performs the procedure or administers or supervises the anesthesia would evaluate the patient immediately upon completion of the surgery and anesthesia. The physician would have admitting privileges at a nearby hospital or maintain an emergency transfer agreement with a nearby hospital.

The proposal by the Kansas Board of Healing Arts would set standards for physicians who perform diagnostic or therapeutic services in an office setting. The standards would be derived from the Office-Based Surgery Guidelines adopted by the Kansas Medical Society House of Delegates in 2002. Each facility would have in place policies and procedures for oversight and supervision of nonphysician practitioners. At least one person would have ACLS/pediatric advanced life support training and be immediately available and in the facility at all times until the patient is discharged from anesthesia care. The anesthesia provider would be physically present during the intraoperative period and available until discharge from anesthesia care. With respect to patient selection, the patient’s condition, intrinsic risks involved and invasiveness of the procedure would be considered when evaluating a patient for office-based surgery. Nothing would relieve the surgeon or physician of the responsibility to make a medical determination of the proper surgical setting or forum. Facilities that use general anesthesia would be required to have medications and equipment available to treat malignant hyperthermia. The regulations also would provide for a list of discharge criteria and require written protocols that address emergency situations.

Medical Litigation Reform
Alaska Governor Frank Murkowski signed S.B. 67, which places a cap of $250,000 on noneconomic damages or $400,000 for noneconomic damages in cases of death or permanent disability that is more than 70 percent disabling.