AA sues anesthesiologist

[sevodude]

Opinion Summaries

Anesthesiologist Assistants May Perform Spinal, Epidural Procedures Under Proper Supervision


2005-1754. Hoffman v. State Med. Bd. of Ohio, 2007-Ohio-2201.
Franklin App. No. 04AP-839, 2005-Ohio-3682. Judgment reversed.
Moyer, C.J., Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger and Cupp, JJ., concur.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2007/2007-Ohio-2201.pdf Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions: http://www.supremecourtofohio.gov/ROD/newpdf/. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
(May 23, 2007) In a 7-0 decision announced today, the Supreme Court of Ohio held that an administrative rule barring anesthesiologist assistants from performing epidural and spinals procedures is invalid because it conflicts with a state statute that allows assistants to perform such procedures under the supervision of an anesthesiologist. In arriving at its decision, which was authored by Justice Judith Ann Lanzinger, the Court concluded that, as used in R.C. 4760.09, the term “assist” means “to carry out procedures requested by the supervising anesthesiologist.”
The case involved a suit filed by Joseph Hoffman of Cleveland, a licensed anesthesiologist assistant, who sought a declaratory judgment and injunction to bar the State Medical Board of Ohio from enforcing an administrative rule adopted by the board in May 2003. The rule in question, O.A.C. 4731-24-04(A), specifically prohibits anesthesiologist assistants from performing “epidural and spinal anesthetic procedures and invasive medically accepted monitoring techniques.”
The Franklin County Court of Common Pleas held that the contested rule was unenforceable because it conflicted with provisions of R.C. 4760.09, a state law enacted in 2000 that sets licensing requirements for anesthesiologist assistants and specifically authorizes practitioners to engage in various types of procedures. On review, the 10th District Court of Appeals reversed the trial court's judgment, holding that the administrative rule and the statute were not in conflict, and ordered the lower court to enter a new declaratory judgment allowing the medical board to enforce its rule. Hoffman appealed the 10th District's decision, and the Supreme Court agreed to review the case.
Writing for the Court in today's decision, Justice Lanzinger cited specific language in R.C. 4760.09 that authorizes licensed anesthesiologist assistants to “(a)ssist the supervising anesthesiologist with the implementation of medically accepted monitoring techniques,” and to “(a)ssist the supervising anesthesiologist with the performance of epidural anesthetic procedures and spinal anesthetic procedures.”
“ Because the administrative rule expressly prohibits anesthesiologist assistants from performing epidural or spinal anesthetic procedures—procedures that R.C. 4760.09(G) allows an anesthesiologist assistant to ‘assist' in, the outcome of this case depends upon the meaning of the word ‘assist,'” wrote Justice Lanzinger.
She noted that there is no definition of “assist” in R.C. Chapter 4760, but pointed to language in Section 4731-24-01(B) of the Ohio Administrative Code, the definitional section applicable to anesthesiologist assistants, which states that: “‘Assist' means to carry out procedures as requested by the supervising anesthesiologist, provided that the requested procedure is within the anesthesiologist assistant's training and scope of practice, is authorized by the practice protocol adopted by the supervising anesthesiologist, and is not prohibited by Chapter 4731 or 4760 of the Revised Code, or by any provision of Chapter 4731. of the Administrative Code.”
Applying the three tests set forth in that definition, Justice Lanzinger wrote that the administration of epidural and spinal anesthetics are procedures covered by the training regimen required for licensure as an anesthesiology assistant; that practice protocols allow assistants to administer anesthetics to patients in a hospital or ambulatory surgical facility “under the direct supervision and in the immediate presence” of an anesthesiologist “who is actively and directly engaged in the practice of medicine;” and that no statutory prohibitions are imposed by R.C. Chapter 4731 or 4760 regarding the practices banned by the challenged administrative rule.
In light of those findings, the Court rejected the medical board's argument that it should apply the general dictionary definition of “assist” to limit the role of anesthesiology assistants of “aiding” a physician in the performance of epidural and spinal procedures. “(B)ecause the word ‘assist' has a technical meaning in the field of anesthesiology, as demonstrated by Hoffman through his expert's affidavit and by the definition set forth in the Ohio Administrative Code, we believe that the General Assembly intended that technical meaning to apply,” wrote Justice Lanzinger. “It is established law in Ohio that [in construing statutes], where a word has a technical definition differing from its dictionary definition, it shall be construed according to the former.”

“ Therefore, the statute permits anesthesiologist assistants to perform epidural and spinal anesthetic procedures provided that, pursuant to R.C. 4760.08, the assistants are directly supervised by an anesthesiologist,” she concluded. “The term ‘assist' as used in R.C. 4760.09 means ‘to carry out procedures as requested by the supervising anesthesiologist.'... We emphasize that R.C. 4760.08 permits an anesthesiologist assistant to carry out epidural and spinal anesthetic procedures as requested by and performed under the direction of a supervising anesthesiologist who is physically present in the room. Without such direct supervision, performance of these procedures by an anesthesiologist assistant would violate the statute.”

Contacts
Stephen P. Carney, 614.466.8980, for the State Medical Board of Ohio.​

Marc S. Blubaugh, 614.223.9300, for Joseph Hoffman.
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[quaker1996]

This will cause more problems in the future, I do not like this precedent that has been set. While it may allow us to utilize AAs in a manner similar to CRNAs, I think it will become more of a headache in the future as AAs begin to "feel their oats".

 

[toughlife]

This will cause more problems in the future, I do not like this precedent that has been set. While it may allow us to utilize AAs in a manner similar to CRNAs, I think it will become more of a headache in the future as AAs begin to "feel their oats".

I don't think that decision was reversed. As late as september of this year it was still standing.

 

[coprolalia]

This was inevitable. When people out there are the ones feeling that they are doing the "work" and are equally competent, they are going to start to believe that they don't need approval or permission.

-copro

 

[core0]

Just out of curiosity how is the title remotely accurate.

David Carpenter, PA-C

 

[coprolalia]

Just out of curiosity how is the title remotely accurate.

David Carpenter, PA-C

I think it probably went something like this...

AA: "Hey, I know you're busy, so how about I put that epidural/spinal in while you finish doing the paperwork?"

MD/DO: "No, I'll put the epidural/spinal in. You're not allowed to by your training."

AA: "Yes, I am."

MD/DO: "No, you're not."

Review of regulations. Unclear. Policy in hospital/practice re-written making it clear AA isn't permitted to do epidural/spinal. AA sues. Badda-bing. Now you have your answer.

(Of course, that's just speculation.)

-copro

 

[core0]

I think it probably went something like this...

AA: "Hey, I know you're busy, so how about I put that epidural/spinal in while you finish doing the paperwork?"

MD/DO: "No, I'll put the epidural/spinal in. You're not allowed to by your training."

AA: "Yes, I am."

MD/DO: "No, you're not."

Review of regulations. Unclear. Policy in hospital/practice re-written making it clear AA isn't permitted to do epidural/spinal. AA sues. Badda-bing. Now you have your answer.

(Of course, that's just speculation.)

-copro

More likely it went like this>
Medical Board: We received a complaint from some people that practice anesthesia that are not physicians that AAs are doing epidurals. We are dumber than a box of rocks and can't figure out what our state medical practice act says. We are going to ban this since we don't understand it even though the AAs supervising physicians do want this and this will compromise patient care.

AA: I guess I will have to sue.

First Judge: The medical board is dumber than a box of rocks, here's your preliminary injunction.

Medical Board: I can't believe that he said we were dumb. Does anyone want that donut?

Supreme Court of Ohio: Can those *****s even read? I think the original judge could be sued for libel by rocks. Read the law you idiots.

AA: Now things stay the way they are.

Other group that made the complaint: I guess we'll just have to keep pushing for independent practice.

Nothing about hospital policy or even that the physician thought it was not in the scope. This puts things back where it should be. AA practice is defined by what their supervising anesthesiologist wants them to do.

David Carpenter, PA-C

 

[jwk]

OK - let me set the record straight so all of you can stop conjecturing (is that a word?) Copro and quaker - take a chill pill and read on - hopefully I'll put your fears to rest. Please read the entire post for the take-home message at the end. And read the court decision carefully for the rationale.

Many moons ago (as in early 70's) AA's started practicing as the first graduates finished at the Case and Emory programs. The Case and Nova programs have taught regional anesthesia from Day 1 and still do. Emory and South teach it through some of their clinical sites.

A few years ago, AA licensure statutes were written in Ohio. Before that time, AA's functioned under delegatory authority in Ohio. Still no problem. As it has ALWAYS been, AA's in Ohio are always under the supervision/direction of an anesthesiologist, and that anesthesiologist determines the proper and best course of care for that individual patient. The anesthesiologist decides who does what for each case. There is no such thing as independent practice for AA's as there is with CRNA's - we ALWAYS function within the anesthesia care team that is headed by the anesthesiologist. Epidurals and central lines have always been part of the scope of practice of AA's under Ohio law, and under the law, have been an allowed part of the AA curriculum at Case Western.

At some point, the Medical Board declared that under their rules, AA's could not perform regional anesthesia or central lines because assist means "help out", not actually perform. However, the rules set up by the medical board were in conflict with the law as it was written by the legislature, under which "assist" clearly means "may perform". Again, keep in mind that AA's had been practicing the same as they always had in Ohio for almost 35 years. That was the basis of the lawsuit.

The way the law is written in Ohio, a "group" can't sue the medical board - an individual has to. Joe Hoffman, an individual AA that had been in practice for many years, offered to lend his name to that legal action. The AAAA couldn't sue, the OSA and ASA couldn't sue, it had to be an individual.

After going all the way to the Ohio Supreme Court, the court determined that the legislature's interpretation and use of the word "assist" did indeed include performing a certain action, as long as that action is under the supervision of an anesthesiologist. The court ruled that the medical board definition of "assist" was in direct conflict with the definition of assist under the law.

AA scope of practice is determined by 1) state law, 2) the state medical board in some states, 3) hospital or surgery center policies or bylaws, 4) the anesthesia group policy if there is one and 5) the individual anesthesiologist for each specific patient. If the patient needs an epidural, and I've done a million of them, and the anesthesiologist says "do not put an epidural in this patient" then I don't. Very simple. The hospital, group, or individual anesthesiologist may be more restrictive than state law with the scope of practice of AA's, but they can't be less restrictive. So, in my former group, I placed central lines, swans, and spinals. I have been appropriately trained for all of these procedures and have done them countless times while I was there. In my current group, our hospital and group policies specifically except both AA's and CRNA'sfrom performing regional anesthesia procedures with the exception of Bier blocks, and central lines, even though many of us have done these procedures countless times in other practices or in training. In another group right across the street, their anesthetists do tons of central lines and swans for their very high-volume cardiovascular anesthesia practice. And in another group I with which I occasionally work locum tenens, both regional anesthesia and central lines are allowed as long as the anesthetist, whether AA or CRNA, demonstrates appropriate training and ongoing proficiency in those procedures.

Here's the take-home message - AA's always have functioned under the supervision and direction of an anesthesiologist. They did in 1971, they do now. This court decision did not change that. What it said was that as long as the procedure is allowed by law, and the AA has appropriate training, the anesthesiologist decides whether the AA may or may not perform that procedure for a given patient or patients, as long as that anesthesiologist provides the appropriate supervision. This action had absolutely nothing to do with the desire of an AA to be independent or to expand our scope of practice. We had/have already been doing the exact same things for 35 years. The position of the AAAA is as follows:

"The AAAA supports the prerogative of the anesthesiologist supervising the care of a given patient to delegate the technical aspects of regional anesthesia and invasive monitoring procedures to an anesthesiologist assistant (AA).

The decision as to the most appropriate anesthetic technique and monitoring options for a particular patient is a medical judgment and must involve the expertise of an anesthesiologist. Anesthesiologist assistants can perform technical aspects of regional anesthesia and invasive line placements. When performed by an anesthesiologist assistant, a regional anesthesia or invasive line procedure must be carried out under the supervision, and with the express consent, of the attending anesthesiologist."

 

[coprolalia]

JWK, if it's true what you say, then this is the most pathetic and overly bureaucratic (read "wasteful" of time, money, and resources) way to have to adjudicate legally practice rights. This is an ideal illustration of everything that's wrong with our "sue to prove" culture. I don't want the courts (i.e., non-experts) deciding how I or my colleagues practice. Sad.

-copro