Originally posted by Platysma
2. Supervision is also not an issue. Legally, several cases have established that Nurse Anesthestists can perform anesthesia without the presence of an anesthesiologist. In such cases, they are considered to be supervised by a surgeon. This is legal in all fifty states. Basically, CRNAs do not want to be "under supervision" by a surgeon. This is so they can bill more for the same procedure. This does not change liability issues-- if surgeons can be sued for MDA mistakes, who are not supervised, certainly they can be sued for CRNA mistakes, even though the surgeon was not "supervising" anyone.
The AANA position on this is quite simple. They claim that under the traditional system (ie., surgeons "supervising" CRNA's in the OR), there was NO legal liability for the surgeon when the CRNA made a mistake DESPITE the "supervision". In fact, it is precisely THIS argument advanced by MDA's (that surgeons who "supervise" CRNA's will be liable for thier malpractice - and therefore they ought not use CRNA's) that the AANA objects to most. According to the AANA, they have fought for practice autonomy IN ORDER TO take the wind out of this argument advanced by "the enemies of Nurse Anesthesia". That is, the AANA is saying in effect "MDA's have been successful in convincing surgeons that if they supervise CRNA's, they take on legal liability for CRNA malpractice. While we don't think this is true, we can bury the issue in any event simply by doing away with supervision. And this is what we have done. Now there should be no 'liability related' reason for a surgeon not to hire a CRNA".
In any event, I am unconvinced by this argument, despite what the AANA's position on this issue is. And it is here that MacGyver alsmot certainly has it wrong.
First, there is no doubt in my mind that the mere act of "supervision" alone is enough to confer liability upon a surgeon for the mistakes of a CRNA. The AANA's arguments are this point are purely self-serving. The ability to direct the means and methods of an "agent" rather than merely the result is the sin quo non of vicarious liability. And this is precisely what "supervision" means in this context. HOW can a person LEGALLY charged with "supervision" (despite the medicare rules, most states STILL have mandatory supervision regulations on the books, never mind the hospital's own regulations themselves) escape liability when the person being supervised makes a mistake? The reality is that the AANA knows this all too well (despite the rhetoric to the contrary). As evidence of this, the AANA urges hospitals to abandon thier own internal regulations requiring "supervision" of CRNA's because, it says, this creates a needless exposure to liability based on that very supervision.
So, on the one hand the AANA is urging that "supervision" does NOT expose the surgeon to liability for the mistakes of the CRNA. On the other hand, it is urging hospitals to abandon the supervision rules because these may expose the hospital to liability.
The reality is somewhere inbetween. Supervision clearly DOES expose supervisors to liability, but hospitals almost certainly hang on to these regulations because, I imagine, supervision decreases mortality and morbidity, which goes quite a bit further in preventing liability.
Secondly. . .
Even so, the AANA's position might now be that in the abscence of "supervision" regulations, there will be NO surgeon or hospital liabilty for CRNA mistakes. Presumably, CRNA's might even practice as independant contractors. It's my position, in any event, that this will have no bearing on actual liability for the surgeon (or hospital) for the mistakes of the CRNA, but will merely change the theory upon which liability is based. No more will malpractice charges against a suregon be based on "supervision" or on a theory of vicarious liability, but instead they will be based on the negligence of the surgeon in choosing to use a less qualified provider in the first place. Again, the AANA is all too aware of this liability issue as well. For instance, the AANA urges that surgeons NOT use non-CRNA nurses to administer anesthetic. Why? The theory of liability is NOT based on "supervision" or some other form of vicarious liability, but rather because the surgeon (and hospital) commit negligence by choosing to use a less qualified practitioner when more qualified practitioners are available and willing. An aggravating factor is that the surgeon or hospital will have chosen the CRNA rather than the MDA in order to save money, a motivation that is never well received by a jury. Certainly IF there ate studies which suggest higher M&M rates for CRNA, a surgeon will have some difficulty explaining why he or she chose to use a CRNA.
Anyway, just some rambling.
Judd
