Physicians groups want Calif. SC to review anesthetists case

Jessica M. Karmasek Apr. 9, 2012, 11:30am

SAN MATEO, Calif. (Legal Newsline) - A California physicians organization, along with the California Medical Association, wants the state Supreme Court to review a decision by two lower courts that state law does not require physician supervision of nurse anesthetists.

The California Society of Anesthesiologists said Monday it plans to request a review by the state's high court in CSA and CMA v. Schwarzenegger.

Last month, a state appeals court affirmed the San Francisco City and County Superior Court's December 2010 decision in the case.

In order for hospitals, ambulatory surgical centers and critical access hospitals to receive reimbursement under Medicare when a certified registered nurse anesthetist, or CRNA, administers anesthesia, federal regulations require that the CRNA must be supervised by a physician.

However, other federal regulations provide that a state's governor has the discretion to make a request on behalf of the State to opt out of the physician supervision requirement after concluding, among other things, that the opt out is consistent with state law.

On June 10, 2009, former Gov. Arnold Schwarzenegger exercised his discretion under federal law and opted California out of the federal physician supervision Medicare reimbursement requirement.

Eight months later, the CSA and CMA filed a petition for writ of mandate and request for declaratory relief contending that the governor "acted contrary to California laws that prohibit CRNAs from administering anesthesia without physician supervision."

The CSA and CMA requested that a writ of mandate issue "commanding (the governor) to withdraw 'opt-out' letter" and for the superior court to declare that "opting out of the requirement that CRNAs be supervised by physicians was not and is not consistent with California law."

Their writ petition was followed by a motion for summary judgment, which included the same arguments.

The superior court, in its Dec. 27, 2010 ruling, declined to issue a writ of mandate or to grant the two organizations' motion for summary judgment. Instead, it concluded that the governor did not abuse his discretion in determining that the opt out was consistent with state law.

In its March 15 decision, the appeals court affirmed the superior court's ruling.

"In order for this court to find that the Governor abused his discretion in attesting that opting out of the federal Medicare physician supervision requirement was consistent with state law, we would have to ignore not just one, but multiple authoritative sources uniformly concluding that CRNAs are allowed to administer anesthesia in California without physician supervision," Presiding Justice Ignazio John Ruvolo wrote.

The CSA said Monday it believes the appeals court's ruling is "flawed" and should be overturned because "issues of substance" brought before the court were not addressed.

"A Supreme Court decision has the potential for far-reaching implications for the citizens of California and beyond," the organization said in a news release. "The question is whether or not physician supervision of advanced practice nurses should be preserved.

"How is the imperative 'that nurses should practice to the full extent of their education and training' to be balanced against protecting the safety of the public from potential degradation in the quality of care rendered by practitioners who are less educated and trained than are physicians?"

In addition to pursuing the matter in court, the CSA said it and the CMA are looking into potential legislative remedies and initiatives.

The two organizations are also urging medical staffs to consider establishing bylaws that require physician supervision of nurses -- an option described in the federal opt-out regulations.

From Legal Newsline: Reach Jessica Karmasek by email at

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