Surgical patients are being put at risk because a new California regulation allows nurse anesthetists to administer anesthesia without the supervision of a physician, claims a lawsuit filed against California Gov. Arnold Schwarzenegger by two large physician groups Tuesday.
"It's a patient safety issue when you have absolutely no supervision from a physician; it's very risky," says Francisco Silva, general counsel for the California Medical Association, which filed the complaint jointly with the California Society of Anesthesiologists.
He adds that there isn't a severe shortage of anesthesiologists to require the revision. "Our concern is, no one has shown that there was ever the need to require doing something this drastic," Silva says.
Additionally, the governor "completely ignored" federal law, which requires a number of procedural steps and consultations with state licensing agencies before taking the action, Silva says. The doctors last year asked Schwarzenegger to withdraw his June letter, but "the governor refused ... asserting that it was consistent with California law," according to the lawsuit, which was filed in San Francisco Superior Court.
Contacted for comment, Schwarzenegger spokesman Mike Naple replied, "The Governor has not yet been served with a lawsuit, but the Administration complied with the law. We are confident that the Administration would prevail in any challenge on this issue, which maintains patient safety at a lower cost to consumers."
The California Hospital Association also weighed in on the scope of practice conflict.
"CHA has historically supported independent practice by highly skilled nurse anesthetists under the oversight of a physician," says spokeswoman Jan Emerson. "The Administration acted on its own, in accordance with federal law, in making this decision. Nurse anesthetists can be an important part of the healthcare team, especially at small and rural hospitals where anesthesiologists are not always available. Without the services of CRNAs, patient care may be put at risk—especially when emergency surgery is needed."
Under Medicare rules, a hospital may be exempted from the requirement in a state if the governor of that state signs a letter to the Centers for Medicare and Medicaid Services requesting it.
But Medicare rules also say the governor must consult with that state's Medical Board and Board of Nursing regarding issues such as the quality and accessibility of anesthesia services in the state, according to the physicians' lawsuit.
The governor didn't consult with those licensing agencies, the physicians claim. On the contrary, "the Medical Board, in a letter dated March 2, 2009 . . . did in fact state that it 'appears that a nurse anesthetist is required to have physician . . . supervision,'" the lawsuit claims. The governor ignored that requirement, Silva says.
Robert Hertzka, MD, a San Diego anesthesiologist and former CMA president, explains that allowing nurse anesthetists to deliver anesthesia to surgical patients is a bad idea because they're not trained for it.
"There's a huge gulf of training and experience" between an anesthesiologist and a nurse anesthetist, he says, comparing their respective roles to those of a cardiologist and a coronary care nurse, or an obstetrician and a labor and delivery nurse.
"We're worried about degradation of quality of care," Hertzka says. "And for what? There's no evidence that there's increased access."
He adds that nurse anesthetists are not trained to respond to complications from anesthesia, or problems in the recovery room. "You need a physician to oversee and assess."
He adds that the federal rule allowing states to opt out of the Medicare requirement that anesthesiologists supervise nurse anesthetists came "out of the blue" in 2001, when then-President Bill Clinton, "whose mother was a nurse anesthetist," put the rule into effect.
Today, Hertzka says, only about seven states have used the opt-out provision, and all of them are small states with large rural populations, such as Idaho, and where, in general, surgeons remain in charge to observe anesthesia administration.
The governor's action significantly impacts "the practice of medicine, [the doctors'] ability to protect their patients and their physician/patient relationships," according to the complaint.
The complaint asks the court to order the governor to withdraw his letter, declare that Schwarzenegger had no authority to submit it, and to "declare that, under California law, a CRNA is not authorized to administer anesthesia, except under the supervision of a physician."
It's unclear whether hospitals are already letting nurse anesthetists work independent of physician supervision. But the lawsuit alleged some hospitals have "already begun to take (that) position."
Hertzka says he would be surprised if nurse anesthetists are working without physician supervision because he doesn't think a medical malpractice company "would insure an unsupervised nurse for medical mishaps in any setting."
The lawsuit added that anesthesiologists and other doctors "are placed in particular peril, and suffer special damage and injury under present circumstances, because physicians have traditionally provided the supervision required by law in most facilities. Relationships between physicians, including but not limited to anesthesiologists, and CRNAs have been jeopardized and made uncertain by the Governor's actions."
Silva speculated that Schwarzenegger may have received pressure to opt out from the California Hospital Association and the California Association of Nurse Anesthetists successfully lobbied him to do so. The nursing group could not be reached for comment.
The California Medical Association represents about 35,000 of approximately 125,000 licensed physicians in the state. The anesthesia physician group has about 4,000 members, according to the lawsuit.