AG Addresses the Relationship Between Physicians and CRNAs
Law Feature - July 2000
By Clayton Devin, JD, and C. J. Francisco, JD
Medical professionals have reached different conclusions about whether the selection and administration of anesthesia by a certified registered nurse anesthetist (CRNA) should be classified as professional nursing or as a delegated practice of medicine. As a result, other issues have arisen, including how much a physician needs to be involved in such cases and which medical board possesses proper authority over them.
Debate over the issue flared recently when the Health Care Financing Administration said it plans to allow state law to dictate whether nurse anesthetists may administer anesthesia to Medicare patients without physician supervision. Texas anesthesiologists are seeking congressional intervention to block the plan. (See " HCFA To Drop Doctor Supervision of CRNAs," April 2000 Action .)
On September 28, 1999, Texas Atty Gen John Cornyn issued Opinion No. JC-0117 in response to a request from the Texas State Board of Nurse Examiners. As restated by the attorney general, the board's position is summarized as follows: "The Board of Nurse Examiners has 'for many years,' considered the selection and administration of anesthesia and the care of an anesthetized patient by a certified registered nurse anesthetist to be the practice of professional nursing rather than the delegated practice of medicine requiring oversight/supervision by a physician" (1).
Attorney General Cornyn responded, "We conclude that your construction is correct only in part. Under the Nursing Practice Act . . . and under the Medical Practice Act . . . the practice of professional nursing includes the selection and administration of anesthesia and the care of an anesthetized patient by a CRNA, but only when those tasks are delegated by a physician. Accordingly, we generally conclude that the Board of Nurse Examiners has authority to regulate the selection and administration of anesthesia and the care of an anesthetized patient by a CRNA. We further conclude that neither the Nursing Practice Act nor the Medical Practice Act requires a physician to delegate the selection or administration of anesthesia or the care of an anesthetized patient. If a physician does so, however, the delegating physician is not required as a matter of law to directly supervise the CRNA, but he or she may choose to do so" (1).
Delegation and supervision
The attorney general's opinion deals with three separate questions.
Are the administration of anesthesia and the care of an anesthetized patient by a CRNA the performance of delegated medical acts?
Yes. Mr Cornyn's opinion is entirely consistent with an opinion issued by the Texas State Board of Medical Examiners (TSBME) on September 9, 1998. The board concluded: "The [TSBME] fully supports the opinion in Dr Levy's letter. We agree that the administration of anesthesia is the practice of medicine and that this act may be delegated to a properly trained and qualified CRNA. In addition, the delegating physician remains ultimately responsible for the acts delegated to the CRNA under the physician's delegated authority. In the opinion of the board, the Medical Practice Act does not confer independent authority to CRNAs to independently administer anesthesia outside the supervision of a delegating physician" (2).
The attorney general's opinion finds that a CRNA may select and administer anesthesia only when those acts have been delegated by a physician, and that there is nothing in the Medical Practice Act or the Nursing Practice Act that requires a physician to delegate those acts. Therefore, that decision is left to the physician's own judgment.
The word "delegate" is a term of art as used in the Medical Practice Act. By including a specific requirement that a physician delegate the selection and administration of anesthesia to a CRNA, the legislature recognized that these are medical acts that may be delegated in the exercise of sound judgment by a physician (3).
That the attorney general did not make a specific finding that the selection and administration of anesthetic agents is the practice of medicine is not surprising since the Medical Practice Act has given TSBME the authority to determine which acts constitute the practice of medicine (3). The board, acting under the authority conferred by the Medical Practice Act, concluded in its opinion that the administration of anesthesia is the practice of medicine.
When a CRNA selects and administers anesthesia, is this the practice of professional nursing, subject to regulation by the Board of Nurse Examiners?
Yes. As noted by the attorney general's opinion, the definition of "professional nursing" contained in the Nursing Practice Act includes the performance of acts delegated by a physician (4). That definition specifically includes a reference to sections 157.052, 157.053, 157.054, 157.058, and 157.059 of the Texas Occupations Code. That statute explicitly allows a physician to delegate anesthesia-related services to a CRNA in a licensed hospital or ambulatory surgical center.
The attorney general's opinion further notes: "We believe that these tasks are within the practice of nursing for a CRNA, but only when the tasks are properly delegated to the CRNA by a physician. The Medical Practice Act authorizes the CRNA, 'pursuant to the physician's order and in accordance with facility policies or medical staff bylaws,' to 'select, obtain and administer' an anesthetic and to 'maintain the patient within a sound physiologic status.' See Tex Occ Code Ann Section l57.058(c). Consistently with the Medical Practice Act, the Nursing Practice Act explicitly defines the term 'professional nursing' to include the selection and administration of anesthesia when delegated by a physician under Section 157.058 of the Texas Occupations Code. Id ' 301.002(2)(G). In that regard, the Medical Practice Act excepts from its coverage professional nurses practicing strictly within the Nursing Practice Act. See Id ' 151.052(4)."
"Finally," the attorney general's opinion says, "Section 157.058(d) of the Occupations Code directs us liberally to construe a physician's authority to delegate anesthesia-related tasks to a CRNA 'to permit the full use of safe and effective medication orders to use the skills and services of certified registered nurse anesthetists.' Tex Occ Code Ann §157.058(d). The Medical Practice Act thus contemplates the full use of CRNAs, exempts CRNAs from the Medical Practice Act in executing anesthesia-related tasks that are within the scope of the practice of nursing, and, we think, leaves the regulation of such tasks as performed by CRNAs to the Board of Nurse Examiners. Of course, a physician need not delegate the selection or administration of anesthesia or the maintenance of an anesthetized patient in the first place" (1).
Must a physician who delegates anesthesia-related tasks to a CRNA directly supervise the CRNA's selection and administration of anesthesia?
No. Section 157.058 of the Texas Occupations Code does not require that a physician directly supervise a CRNA's selection and administration of anesthesia. The extent of physician involvement is left to the physician's professional judgment in light of other federal and state laws, facility policies, medical staff bylaws, and ethical standards (1).
The attorney general concluded, "The fact that the provision of anesthesia-related services performed by a CRNA is within the practice of nursing and is subject to regulation by the Board of Nurse Examiners does not bear on the extent to which a physician who chooses to delegate anesthesia-related tasks must supervise the CRNA's performance. We conclude that the Medical Practice Act does not require a physician to directly superintend the CRNA in the performance of delegated anesthesia-related tasks. Nor, on the other hand, does it absolve a physician from responsibility for an imprudent delegation" (1).
Further, the attorney general noted that the legislature's choice of ". . . the term 'delegate' denotes a deputization of one person, eg, a CRNA, to act as the agent of the other, eg, the physician" (1).
Physicians still responsible
Attorney General Cornyn's opinion also cites other relevant portions of the Medical Practice Act, which provide that a physician may delegate medical acts to a nonphysician, but the physician remains responsible for the outcome of the delegated acts (5). This is the same interpretation of a physician's obligations as provided by TSBME in its opinion.
The attorney general has provided several examples of other statutes or regulations that require direct supervision of a CRNA to whom the physician has delegated the selection and/or administration of anesthesia.
The analysis provided by the attorney general's opinion also considers where a physician delegates to a CRNA the authority to select and administer anesthesia. In doing so, the attorney general noted that Section 157.058 of the Occupations Code is limited to administering anesthesia in a licensed hospital or ambulatory surgical setting. That portion of the statute does not specifically address other settings, such as outpatient procedures in a physician's office. For issues related to those settings, the attorney general cited Section 157.002 of the Texas Occupations Code, which does provide authority to a physician to delegate medical acts to a properly trained and qualified nonphysician (5). In doing so, the delegating physician remains responsible for the outcome of the delegated acts.
Attorney General Cornyn has clarified the ambiguity surrounding the delegation of medical acts to nonphysicians; in this case, the selection and administration of anesthetics and care of anesthetized patients. In doing so, the opinion has confirmed that anesthesia-related services are the practice of medicine, and that physicians may delegate these acts to properly trained and qualified CRNAs. The extent to which the delegating physician is required to supervise the performance of the delegated acts is a complicated question that requires reference to a broad spectrum of legal authority. However, regardless of whether the delegating physician is required to directly supervise the CRNA, the delegating physician remains responsible to TSBME and to the patient for acts performed by a CRNA under the physician's delegated authority.
Clayton Devin, JD, is a shareholder in the law firm of McCauley, MacDonald, Devin and Huddleston in Dallas and is the outside general counsel to the Texas Society of Anesthesiologists. C.J. Francisco, JD, is TMA senior counsel. Gilbert Cordova, a staff assistant in the TMA Office of General Counsel, assisted in the preparation of this article.