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The Verdict Is In
http://boards.medscape.com/forums/[email protected]@.2a30602b!comment=1&src=mp&spon=46&uac=127398SY
Tony Francis, MD, Orthopaedic Surgery, 12:56PM Mar 22, 2012
Thanks to the Law Med Blog for publishing this story. Under arcane Medicare rules, payments for CRNAs giving anesthesia are to be denied to hospitals unless the CRNA is "supervised" by a licensed physician. There is an opt out rule. The governor of the state can issue an executive order that, after reviewing the situation with the state medical board, declares it is safe for CRNAs to operate without supervision. Then the Medicare payments to hospitals for CRNAs can be allowed. This is what happened in California. Governor Arnold Schwartzenegger signed an order that CRNAs didn't need physician supervision. It was upheld by his successor, Governor Jerry Brown. Various California physician groups sued to overturn the orders, claiming California law required their attendance during anesthesia. In 2010, a state judge in San Francisco disagreed and sided with the CRNAs, determining that California State law did not require physician supervision. And it never had.
Recently, the First District Court of Appeal in San Francisco upheld the ruling of the lower court. This keeps the order of the governor intact. CRNAs in California do not need physician supervision.
Several questions immediately emerge. What does "supervision" mean? No one seems to know. As the Law Med blog notes, it depends on who is using it. Supervision could be having the anesthesiologist looking over the shoulder of the CRNA during the entire procedure. That is neither practical nor necessary. If an anesthesiologist is necessary, then why have the CRNA in the first place?
Another interpretation is that the anesthesiologist sits out in the surgery lounge drinking coffee, but is close at hand.
A third possibility is the anesthesiologist co-signs the CRNA's record, and presumably collects a fee for not doing very much.
The Law Med blog also pointed out that physicians such as dermatologists and podiatrists could be the "supervising" physician. I was a little skeptical of this at first. But as Law Med blog kindly noted, it is usually the ordering physician who would be doing the supervising. Or it could be that way. And dermatologists are now routinely performing cosmetic procedures. So another question emerges. "Just how is the operating surgeon supposed to 'supervise' anesthesia?" This too, seems highly impractical. First of all, dermatologists and podiatrists generally don't know much about anesthesia. And neither do other categories of surgeons. And if they are operating, how are they supposed to monitor anesthesia?
This led me to one more question. How does all this play out under California's Captain of the Ship Doctrine (COTSD)? Most states have been moving away from COTSD in med mal cases. But California went back the other way in the 2006 in Fields v. Yusuf.
In late 2006, the California Court of Appeal (Second Circuit, Division 2) reviewed Fields v. Yusuf (2006) In that case, a patient presented to the hospital for pain management after she sustained injuries from a fall. Studies revealed that arteries in plaintiff Fields right leg were completely blocked due to advanced vascular disease. Dr. Yusuf performed arterial bypass graft surgery to place a new blood vessel in Fields right leg, inserting sponges to absorb and stem the flow of blood. The postoperative notes show that two sponge counts were conducted and that the counts were correct.
The next day, Dr. Yusuf performed a second surgery to remove a blood clot that had developed in the graft. He was assisted in this surgery by a registered nurse and a scrub technician. Dr. Yusuf had worked with both of these assistants for several years. During the second surgery, Dr. Yusuf again inserted sponges to absorb and stem the flow of blood. The postoperative notes indicate that there was only one sponge count during this surgery, and that Dr. Yusuf was informed that the count was correct. Unfortunately, a sponge was left in Fields leg during this surgery. Several complications followed, which resulted in the loss of Fields leg. Fields filed a complaint for negligence against the hospital and Dr. Yusuf.
At trial, expert testimony established that Dr. Yusuf and the operating room nurses shared a joint responsibility for ensuring a correct sponge count. Expert testimony further established that the surgeon, Dr. Yusuf, had the ultimate responsibility to ensure that the sponge counts were accurate. Dr. Yusufs expert testified that it was within the standard of care for Dr. Yusuf to rely on the nurses sponge count when the count was reported as correct and there were no foreign bodies observed in the operating field. He testified that the number of sponge counts and the manner in which they were performed were the responsibility of the nurses and not the physician. This was established by the hospitals own policies and procedures. Fields requested that the trial court instruct the jury regarding the captain of the ship doctrine, among other instructions. The court refused. Ultimately, the jury found that Dr. Yusuf was not negligent, and the trial court entered judgment in his favor. This appeal followed. The Court of Appeals concluded that it was reasonably probable that the jury might have reached a different result if it had been properly instructed on the captain of the ship doctrine. The courts decision has given the previously ailing doctrine a new set of sails.
In light of that case, it seems the operating surgeon should be liable in California for CRNA negligence. I posed the question on the Med Law blog and was promptly supplied an answer. California case law has never recognized physician responsibility for CRNA negligence. A series of cases documenting this is presented on their blog in the comments section.
So here is the situation in California. The surgeon (or other physician) orders anesthesia from a CRNA. The CRNA administers drugs ordered by the physician. The CRNA is an independent actor, not needing "supervision," what ever that means.
So one more question came up. What about Respondeat Superior? If the physician must order both the CRNA's services and the drugs used by the CRNA during the procedure, isn't a kind of master-servant relationship established? Once again, the Law Med blog assures me this has never been the case.
If all this leaves you shaking your head, don't feel bad. As with all regulatory cases that end up being decided in court, new questions arise which were not answered by the case at hand. Or even contemplated in the first place.
The entire report from the Law Med blog is found here, including the decision by the California Appellate Court and other relevant links.
http://lawmedconsultant.com/3146/ca...thetists-can-practice-without-doc-supervision
The Verdict Is In
http://boards.medscape.com/forums/[email protected]@.2a30602b!comment=1&src=mp&spon=46&uac=127398SY
Tony Francis, MD, Orthopaedic Surgery, 12:56PM Mar 22, 2012
Thanks to the Law Med Blog for publishing this story. Under arcane Medicare rules, payments for CRNAs giving anesthesia are to be denied to hospitals unless the CRNA is "supervised" by a licensed physician. There is an opt out rule. The governor of the state can issue an executive order that, after reviewing the situation with the state medical board, declares it is safe for CRNAs to operate without supervision. Then the Medicare payments to hospitals for CRNAs can be allowed. This is what happened in California. Governor Arnold Schwartzenegger signed an order that CRNAs didn't need physician supervision. It was upheld by his successor, Governor Jerry Brown. Various California physician groups sued to overturn the orders, claiming California law required their attendance during anesthesia. In 2010, a state judge in San Francisco disagreed and sided with the CRNAs, determining that California State law did not require physician supervision. And it never had.
Recently, the First District Court of Appeal in San Francisco upheld the ruling of the lower court. This keeps the order of the governor intact. CRNAs in California do not need physician supervision.
Several questions immediately emerge. What does "supervision" mean? No one seems to know. As the Law Med blog notes, it depends on who is using it. Supervision could be having the anesthesiologist looking over the shoulder of the CRNA during the entire procedure. That is neither practical nor necessary. If an anesthesiologist is necessary, then why have the CRNA in the first place?
Another interpretation is that the anesthesiologist sits out in the surgery lounge drinking coffee, but is close at hand.
A third possibility is the anesthesiologist co-signs the CRNA's record, and presumably collects a fee for not doing very much.
The Law Med blog also pointed out that physicians such as dermatologists and podiatrists could be the "supervising" physician. I was a little skeptical of this at first. But as Law Med blog kindly noted, it is usually the ordering physician who would be doing the supervising. Or it could be that way. And dermatologists are now routinely performing cosmetic procedures. So another question emerges. "Just how is the operating surgeon supposed to 'supervise' anesthesia?" This too, seems highly impractical. First of all, dermatologists and podiatrists generally don't know much about anesthesia. And neither do other categories of surgeons. And if they are operating, how are they supposed to monitor anesthesia?
This led me to one more question. How does all this play out under California's Captain of the Ship Doctrine (COTSD)? Most states have been moving away from COTSD in med mal cases. But California went back the other way in the 2006 in Fields v. Yusuf.
In late 2006, the California Court of Appeal (Second Circuit, Division 2) reviewed Fields v. Yusuf (2006) In that case, a patient presented to the hospital for pain management after she sustained injuries from a fall. Studies revealed that arteries in plaintiff Fields right leg were completely blocked due to advanced vascular disease. Dr. Yusuf performed arterial bypass graft surgery to place a new blood vessel in Fields right leg, inserting sponges to absorb and stem the flow of blood. The postoperative notes show that two sponge counts were conducted and that the counts were correct.
The next day, Dr. Yusuf performed a second surgery to remove a blood clot that had developed in the graft. He was assisted in this surgery by a registered nurse and a scrub technician. Dr. Yusuf had worked with both of these assistants for several years. During the second surgery, Dr. Yusuf again inserted sponges to absorb and stem the flow of blood. The postoperative notes indicate that there was only one sponge count during this surgery, and that Dr. Yusuf was informed that the count was correct. Unfortunately, a sponge was left in Fields leg during this surgery. Several complications followed, which resulted in the loss of Fields leg. Fields filed a complaint for negligence against the hospital and Dr. Yusuf.
At trial, expert testimony established that Dr. Yusuf and the operating room nurses shared a joint responsibility for ensuring a correct sponge count. Expert testimony further established that the surgeon, Dr. Yusuf, had the ultimate responsibility to ensure that the sponge counts were accurate. Dr. Yusufs expert testified that it was within the standard of care for Dr. Yusuf to rely on the nurses sponge count when the count was reported as correct and there were no foreign bodies observed in the operating field. He testified that the number of sponge counts and the manner in which they were performed were the responsibility of the nurses and not the physician. This was established by the hospitals own policies and procedures. Fields requested that the trial court instruct the jury regarding the captain of the ship doctrine, among other instructions. The court refused. Ultimately, the jury found that Dr. Yusuf was not negligent, and the trial court entered judgment in his favor. This appeal followed. The Court of Appeals concluded that it was reasonably probable that the jury might have reached a different result if it had been properly instructed on the captain of the ship doctrine. The courts decision has given the previously ailing doctrine a new set of sails.
In light of that case, it seems the operating surgeon should be liable in California for CRNA negligence. I posed the question on the Med Law blog and was promptly supplied an answer. California case law has never recognized physician responsibility for CRNA negligence. A series of cases documenting this is presented on their blog in the comments section.
So here is the situation in California. The surgeon (or other physician) orders anesthesia from a CRNA. The CRNA administers drugs ordered by the physician. The CRNA is an independent actor, not needing "supervision," what ever that means.
So one more question came up. What about Respondeat Superior? If the physician must order both the CRNA's services and the drugs used by the CRNA during the procedure, isn't a kind of master-servant relationship established? Once again, the Law Med blog assures me this has never been the case.
If all this leaves you shaking your head, don't feel bad. As with all regulatory cases that end up being decided in court, new questions arise which were not answered by the case at hand. Or even contemplated in the first place.
The entire report from the Law Med blog is found here, including the decision by the California Appellate Court and other relevant links.
http://lawmedconsultant.com/3146/ca...thetists-can-practice-without-doc-supervision
