Court of Appeals of Ohio Upholds Anesthesiologist Assistant Regulations; Wisconsin Supreme Court Invalidates Caps on Noneconomic Damages

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


he Court of Appeals of Ohio reversed the lower court’s ruling and upheld the State Medical Board of Ohio’s regulation prohibiting anesthesiologist assistants (AAs) from performing epidural and spinal anesthetic procedures and invasive monitoring techniques. The lawsuit was brought by an AA who challenged the medical board’s prohibition against such procedures. The issue before the court involved the statutory interpretation of the word “assist” as set forth in the language governing the scope of authority of an AA. § 4760.09 of the Revised Code states:

In providing assistance to the supervising anesthesiologist, an anesthesiologist assistant may do any of the following:

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

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

C) Assist the supervising anesthesiologist with the implementation of medically accepted monitoring techniques;

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

E) Administer intermittent vasoactive drugs and start and adjust vasoactive infusions;
F) Administer anesthetic drugs, adjuvant drugs, and accessory drugs;

G) Assist the supervising anesthesiologist with the performance of epidural anesthetic procedures and spinal anesthetic procedures;

H) Administer blood, blood products, and supportive fluids.

Subsequent to the enactment of the AA statutes, the medical board promulgated more detailed rules that specifically precluded AAs from performing epidural and spinal anesthetic procedures and invasive monitoring techniques:

Nothing in this chapter of the Administration Code or 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. OAC Ann. 4731-24-04.

The Medical Board argued that “assist” means that an AA may merely help the supervising anesthesiologist as the anesthesiologist performs the procedures. Conversely the AA interpreted the statute as the AA, by personally and independently performing the procedures, would help the anesthesiologist in the overall performance of treatment and care. The court focused on whether the prohibited procedures set forth in the medical board’s regulations conflicted with the activities allowed by the statutes.

The court concluded that there was no evidence that the legislature intended anything other than the plain meaning of “assist” to be used in the statutes. The legislature did not offer a specialized definition of “assist” in the statutes. Moreover the court looked at the statutory section as a whole and concluded that had the legislature intended for “AAs to directly perform as principals the contested procedures, a more direct definition of their role would doubtless have been chosen, such as ‘perform,’ ‘establish’ or ‘administer.’” The Court reversed the lower court’s judgment and held the medical board’s regulations to be consistent with the limiting intent of the legislature.

Wisconsin Court Invalidates Caps on Noneconomic Damages
The Wisconsin Supreme Court’s 4-3 decision declared the $350,000 cap on noneconomic damages to medical malpractice victims unconstitutional. The ruling does not apply to wrongful death suits. The court held that the cap violated the equal protection clause of the state constitution because the cap bears no rational relationship to reduced malpractice insurance premiumsor the other stated legislative objectives. Furthermore the majority concluded that the $350,000 cap ($445,775 adjusted for inflation) was “unreasonable” and “arbitrary.” The dissenting opinions argued that caps are part of the legislative strategy to ensure affordable and available health care and criticized the court for applying a higher standard of review.

Office-Based Surgery
The Virginia Board of Medicine issued a proposal to amend the office-based surgery rules that would allow nurse anesthetists and physicians to administer a major conductive block for diagnostic and therapeutic purposes in the nonsurgical setting. The office-based surgery regulations currently allow anesthesiologists and nurse anesthetists to administer major conductive blocks in the surgical setting. The medical board’s purpose was to clarify that qualified nonanesthesiologist physicians may perform major conductive blocks for therapeutic and diagnostic purposes in the nonsurgical setting. When a major conductive block is performed for diagnostic or therapeutic purposes, the qualified physician administering the block is able to focus both on the procedure and adverse effects, if any, to the anesthesia. This proposal would allow qualified physicians to continue this practice without violating the office-based surgery requirement that a separate anesthetic provider administer the anesthesia. While the Virginia Society of Anesthesiologists (VSA) and ASA support the intent of the proposal, they are seeking to eliminate the language that would allow nurse anesthetists to perform such blocks in the nonsurgical setting. ASA and VSA submitted joint comments to the medical board.