The Practice of Medicine: How California May Be Losing It’s Way (Part III)

by
  • Tirce, Christopher, MD, FASA
| Oct 12, 2020
Christopher-Tirce

As scope battles continue, there is an urgent need for stronger and more direct tactics to counter misinformation and increase understanding of the practice of medicine. In modern debate on this issue, diagnosis and treatment—the fundamental skills that distinguish the practice of medicine from support medical care roles – have not received enough attention…and maybe they should be.

So now you know that we as anesthesiologists are legally liable for nurse anesthetists’ mistakes—as can be a surgeon or gastroenterologist—even though California is an opt-out state. Furthermore, the American Association of Nurse Anesthetists (AANA) purports that they are just as capable and safe, if not more safe, than doctors at administering anesthesia (We Are the Answer); all nurse anesthetist schools will be required to be doctoral programs by 2025; some DNP’s are already deceiving patients and inappropriately referring to themselves as “doctor” in the course of patient care; and Assembly Bill 890 has just been signed by Governor Newsom (making it possible for nurse practitioners to diagnose and treat patients without any physician involvement). If anyone doubted the nursing lobby is seeking scope encroachment, by now there should be no question.

How we go about combating scope creep, ensuring patient safety and the integrity of medical practice, is a very daunting, fraught, and sometimes emotional topic. History, laws, changes in knowledge, skill sets, and technology, as well as money, and politics are all involved. It is these last two that may prove most problematic for physicians. What doesn’t change, however, is that conducting and managing general anesthesia is the practice of medicine, and this has yet—at least in California—to be the basis of any challenge to nursing practices and legislation that attempts to misappropriate these duties.

Taking a closer look at California’s opt-out (2009-2012), existing laws, and tying that in with the new legislation we are seeing today (i.e., AB 890) might provide us some useful guidance.

The Legal Definition of the Practice of Medicine

Legally speaking, states define what is the practice of medicine, and that differs from state to state. In California, the Business and Professions Code (BPC) Section 2052 makes it illegal to diagnose, treat, or operate for any physical or mental condition without a valid physician and surgeon’s certificate. It is this diagnosis and treatment that most would agree defines the practice of medicine, and is also what the State of California declares it to be in law.

California’s Opt-Out, and the Fallacy of “Independent Practice”

How exactly did California opt out of Centers for Medicare & Medicaid Services (CMS) requirements for physician supervision for nurse anesthetists (CMS Code of Federal Regulations 482.52)? Put simply, all that is required is for the Governor to submit a letter to CMS stating that he has concluded it is in the best interest of the state’s citizens to opt-out, and that the opt-out is consistent with state law. The law governing this in our state is the Nursing Practice Act in the California Business and Professions Code (BPC):

Section 2725 (b)(2) Direct and indirect patient care services, including, but not limited to, the administration of medications and therapeutic agents, necessary to implement a treatment, disease prevention, or rehabilitative regimen ordered by and within the scope of licensure of a physician, dentist, podiatrist, or clinical psychologist, as defined by Section 1316.5 of the Health and Safety Code.

Interestingly, the barebones requirements above from CMS for the Governor to opt-out does not say that the Governor has to be correct in his conclusion that it is consistent with state law. It is at his or her discretion. Subsequently, the joint California Society of Anesthesiologists (CSA)/California Medical Association (CMA) legal challenge to the opt-out back in 2009-2012 was based on arguing that Governor Schwarzenegger’s submission of the opt-out letter to CMS was, in fact, inconsistent with this state law. The argument was that the above law meant that nurses required supervision in order to administer anesthesia.

Ultimately, this argument failed because, as is strictly true and as the appellate courts stated, “California does not require [nurse anesthetists] to administer anesthesia under physician supervision. Instead, it permits [nurse anesthetists] to administer anesthesia ordered by a physician.” Nowhere does it stay that they require physician supervision. They go on, “In reality, the result of the opt out is that California hospitals, critical access hospitals, and ambulatory surgery centers are exempted from federal rules making physician supervision a prerequisite for Medicare reimbursements. Whether physicians should supervise [nurse anesthetists], or whether [nurse anesthetists] should be used at all, are questions that have to be decided by each individual medical facility because hospitals can always exercise stricter standards than required by State law.”

And so, this one appellate ruling clarifies two important things:

  1. The opt-out was a reimbursement decision, not one of scope. It made it so that facilities could still receive Medicare payments for anesthesia services if not supervised by an anesthesiologist…but did not say it was appropriate for nurses to practice unsupervised.

  2. It clarifies that the term “independent practice” is a misnomer. According to both state law and the appellate court, for a nurse anesthetist to administer anesthesia, they require an order from a physician. (What sufficiently constitutes an “order,” however, is not entirely clear.)

Please take note, California state law per BPC 2725(b)(2) says that nurses cannot administer medications without an order by a physician. Stated another way, our law says that nurse anesthetists cannot administer anesthesia without a physician order. Nurse anesthetists do not, in fact, have “independent practice” rights in California, and we would do well to emphasize this and move away from this terminology.

Scope Creep, and What Our Role Should Be

The North Carolina appellate court decision I wrote about in my first article reiterated North Carolina’s long-standing precedent that nurses “are not supposed to be experts in the technique of diagnosis or the mechanics of treatment.” But California differs in that we have no such legal interpretation on record that maintains that nurses are not supposed to be experts in the technique of diagnosis or treatment. All we have is BPC 2052 that makes it illegal to diagnose, treat, or operate for any physical or mental condition without a valid physician and surgeon’s certificate. But the unaddressed legal description remains: Is the administration of general anesthesia and all its attendant intricacies—including acutely developing surgical and anesthetic complications, and the rapid nature of accurate diagnosis and treatment—the practice of medicine?

I, and I believe every patient, would agree that the practice of delivering and managing anesthesia is unquestionably is the practice of medicine. In addition, and quite notably, The Nurse Anesthetist Act (1983) strictly forbids nurse anesthetists from practicing medicine:

BPC 2833.5. Except as provided in Section 2725 and in this section, the practice of  nurse anesthetist does not confer authority to practice medicine or surgery.

But the American Association of Nurse Anesthetists says the following: 

“When anesthesia is administered by a nurse anesthetist, it is recognized as the practice of nursing; when administered by a physician anesthesiologist, it is recognized as the practice of medicine.”

This arbitrary statement has no foundation, no evidence to support its validity, and does not address what, if anything, distinguishes the two from each other. And I think we very much should point out this fundamental flaw.

I think it is entirely possible to carefully and clearly outline the diagnostic and treatment elements inseparable from and paramount to the administration of a general anesthetic—elements that distinctly require licensed and specially trained physicians to safely and successfully carry out. To establish this basic foundation in the eyes of the courts would mean the unsupervised administration of anesthesia by nurses might be reversed.

An Ongoing Battle, a Strategic Shift

As long as we take a passive approach, praising the contributions of nurses, embracing a team care model, and tiptoeing around brazen lobbying efforts, we will never be able to ensure the safety our patients, or the integrity of our profession. Scope creep will continue, and we will continue to see legislation that removes practice safeguards and eliminates the lines that separate nursing from medicine. Of great concern, AB 890 expressly allows certain nurses to practice medicine truly independently under specific circumstances. Unchecked, the list of these specific circumstances will continue to be expanded. Unchecked, the small subset of nurses will grow to include more and more. Unchecked, some of them will even call themselves “doctor.”

I encourage you to stand behind your degree, your unique and highly specialized skills and training, and not back down from a great and monstrous disservice to the sick. We cannot fight misinformation and propaganda without directly, persistently, and intentionally pursuing false and harmful narratives and calling them out for what they are. Otherwise, we can say all we want, but they will continue getting their fictionalized message out, calling themselves doctors, and maneuvering into a custody of care that is, at its best, an arrogant miscarriage of the practice of medicine.

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