By Christopher G. Tirce, MD, FASA
Scope of practice issues frequently dominate public policy discussions in health care and the practice of medicine, and anesthesiology is no exception. A legal case in North Carolina may have implications for the scope of practice debate involving nurse anesthetists both in the US and in California.
In a recent ruling by the North Carolina Court of Appeals, a nurse anesthetist was found not liable for hypoxic/anoxic injury in a 3-year-old patient scheduled for a cardiac ablation procedure for dysrhythmias. The presiding judge cited prior Supreme Court case law, Byrd v. Marion General Hospital (1932), in which the North Carolina Supreme Court reasoned that the care of nurses acting under the direction of a physician is not the action of the nurse but of the physician. This was reflected in their discussion of a principle known as respondeat superior—a legal doctrine in which a party holds vicarious liability for the actions of their agents. The Court further established that nurses “are not supposed to be experts in the technique of diagnosis or the mechanics of treatment.”
The linked decision document contains a detail of the events that occurred back in 2010, and I encourage you to read it. Briefly, and according to the appellate court documents, 3-year-old Amaya Hopper had a cardiac arrest after undergoing an inhalation induction with sevoflurane. “After about thirteen minutes, Amaya’s treatment team was able to revive her, but the oxygen deprivation left her with permanent brain damage, cerebral palsy, and profound developmental delay.”
Amaya’s family filed an initial lawsuit in 2015 in which the jury was unable to reach a verdict. Afterward, the family settled out of court with the attending anesthesiologist, but continued its cases against the hospital and the nurse anesthetist. They went to trial again in 2018, lost, and subsequently appealed—which brings us to this month’s appellate decision.
Referring back to the 1932 Byrd decision, Judge Richard Dietz stated, “If this Court were free to reject Supreme Court precedent that we felt did not age well, it would destabilize our position as an intermediate appellate court. On issues where our Supreme Court already has spoken, we do not make law, we follow it.” Therefore, the Court deemed itself not in a position to rule in favor of the plaintiffs as more a matter of the structure of the courts and less on any merit of the plaintiffs’ arguments about the liability of the nurse anesthetist.
Nonetheless, this case and its decision bring up many questions, and the potential ramifications are interesting to consider. North Carolina is not currently an opt-out state. And in that state, nurse anesthetists have been found not liable by precedent. And that precedent can only be overturned by the state’s Supreme Court—a battle we may yet still see if the family wishes to pursue it that far. In North Carolina’s circumstances, the responsibility clearly falls on the anesthesiologists who are supervising or directing the nurses. But what about in an opt-out state, such as California? Does the responsibility then fall to the gastroenterologist or surgeon with whom the nurse anesthetist is working? And if so, would that serve as a deterrent for surgical and GI practices, encouraging them to maintain an MD contract for the provision of anesthesia services? It doesn’t seem to have accomplished that so far.
Another question centers around whether or not there is a strategy that would serve to better deter the inexorable march of the nurse anesthetist lobby to push the boundaries of scope of practice beyond their training, education, and qualifications? If nurse anesthetists are found to be liable for negligence when practicing independently, then that could arguably result in a tempering of the efforts of the nursing lobby to overstep scope of practice. On the other hand, if nurse anesthetists remain without legal liability and that liability instead falls to the nearest physician, could that encourage maintenance of anesthesia contracts with physician anesthesiologists? This would allow non-anesthesia practitioners to avoid the attached liability they would be assuming with the use of independent nurse anesthetist.
So which approach is correct? Is this court finding that upholds the absence of liability for nurse anesthetists good for physician anesthesiologists because it makes independent practice by nurse anesthetists less desirable in the marketplace? Or would the attribution of responsibility and liability to nurse anesthetists provide enough of a disincentive for them to seek independent practice? Or is there some other possible outcome (Remember that much of these legalities vary from state to state)?
Please write your comments below and stay tuned for our follow-up on the liability status of physicians and nurse supervision specific to California.