By Christopher G. Tirce, MD, FASA
In my last article, I discussed a case of nurse anesthetist non-liability in North Carolina1 that asks us to consider several questions about supervision, liability, scope of practice, and fundamentally what we do as perioperative physicians. But let’s ask the real question: What is the law in California?
On the surface, the answer to the question of nurse anesthetist liability in California is actually rather straightforward—they very much are legally liable. Section 2828 of the California Business and Professions Code (BPC)2 states, “Notwithstanding any other provision of law, a nurse anesthetist shall be responsible for his or her own professional conduct and may be held liable for those professional acts.” But that is where the straightforward nature of things sadly ends.
Somewhat peculiar is the fact that, while nurse anesthetists in California can be found liable for their own negligence, our legal team at the CSA has found no reported case of a nurse anesthetist being found personally liable in California. This, unfortunately, leaves us without any case law to cite or clarify. And even more confusing, the physician (or even the hospital entity) associated with the nurse anesthetist during the case is not free from liability for a nurse’s negligence thanks to respondent superior.
The North Carolina appellate court decision found the nurse anesthetist not liable for negligence because of a prior state court ruling that invoked the concept of “respondent superior”—the doctrine in which a party holds vicarious liability for the actions of their agents. Similarly, California law maintains what is known as the “Captain of the Ship” doctrine—physicians may be held responsible under respondeat superior for the acts of those under the physician’s direct supervision and control during a procedure.3 It turns out that the key element for us here is “control.”4 Surgeons are seen as an authority, exerting control over a nurse and thus liable for a nurse’s negligence.
While this Captain of the Ship principle is arguably no longer applicable from its original invocation in the 1930’s (yes, the 1930’s), it was nonetheless upheld in California in the 2006 case of Baumgardner v. Yusuf (144 Cal.App.4th 1381).5 In that case, the California Court of Appeals affirmed liability of a surgeon for a retained sponge despite the fact that immediate responsibility for the sponge count rested with an operating room nurse. It is this legal interpretation that applies to nurse anesthetists and the associated physician’s liability—anesthesiologist, surgeon, or gastroenterologist.
So we now know that nurse anesthetists in California can be held liable for their own negligence. But we also know that the associated anesthesiologist, surgeon, gastroenterologist, or hospital can also be found liable for their actions—even if the nurse anesthetist is found to be the responsible party, and irrespective of whether or not the nurse is even named in the lawsuit. And it bears emphasizing that, despite nurse anesthetists being legally liable for their actions in our state, we find no report of them being held to this account in California (while there are reported cases of the physicians responsible for them being found liable).
Taking all of this into consideration, how is it that the nurse anesthetist lobby pushes for and wins supervision opt-outs, stating things like “physician supervision…is not and never has been a matter of patient safety,” and “The medical- and anesthesiology-focused education and training required to become a physician anesthesiologist is not unlike the education and training of a CRNA,”6 yet physicians continue to bear the legal consequences for their liability? Is it a matter of scope? Does it boil down to complicated legal jousting? Can it be a failure on the part of physicians to advocate well enough? Or are these the wrong questions? Should, in fact, nurses be able to do everything that we as physicians do, notably including the diagnosis and treatment of patients? (AB 890, which just passed out of the legislature on 8/31/2020, may accomplish just this)
Where is the line…and where should it be?
Please post your comments below, and check back for Dr. Tirce’s next article that will seek to untangle some of the legal and practical definitions surrounding the practice of medicine, anesthesiology, and nursing…conceptually and in state law.
- Tirce, Christopher, MD, FASA. “North Carolina Nurse Anesthetist Not Liable in Medical Malpractice Case: Implications and Future Directions.” California Society of Anesthesiologists, www.csahq.org/practice-management/op-eds/north-carolina-nurse-anesthetist-not-liable-in-medical-malpractice-case-implications-and-future-directions.
- “Business and Professions Code, Division 2, Chapter 6, Article 7, Section 2828.” California Legislative Information, https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=BPC§ionNum=2828.
- Souther, Matthew. “The ‘Captain of the Ship’ Doctrine Gets a New Set of Sails. Neil & Dymott Attorneys, https://www.neildymott.com/‘captain-ship-doctrine-gets-new-set-sails.
- “Derivative Liability of Surgeon, CACI No. 510.” Justia, https://www.justia.com/trials-litigation/docs/caci/500/510.
- "Baumgardner v. Yusuf, 2006." CaseText, https://casetext.com/case/baumgardner-v-yusuf.
- “CRNA’s: We Are the Answer.” AANA, https://www.aana.com/docs/default-source/marketing-aana-com-web-documents-(all)/crnas-we-are-the-answer.pdf?sfvrsn=b310d913_4.