Smith Anderson Clients Win Victory From the North Carolina Court of Appeals

Susan H. Hargrove and Dana E. Simpson, lawyers with Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., recently argued and won a significant scope of practice case before the North Carolina Court of Appeals. Smith Anderson represented the North Carolina Society of Anesthesiologists (NCSA) and the North Carolina Medical Society (NCMS), and acted as co-parties with the North Carolina Medical Board, in a case regarding the Medical Practices Act.

The three judge Court of Appeals panel hearing the Board of Nursing's ("BON") appeal released a unanimous decision in favor of the NCSA, NCMS and the Medical Board. The ruling rejected the appeal by the BON in its litigation to overturn the requirement of physician supervision in the Medical Board's office-based surgery guidelines.

In its ruling the Court clearly and specifically stated that the 1994 Consent Order between the BON, NCSA, NCMS and Medical Board cannot be construed as acquiescence by the NCSA, NCMS and Medical Board to a standard of collaboration, rather than supervision. "We cannot agree with [the Board of Nursing's] assertion that the affidavits compel a conclusion that the Medical Board abandoned the standard of care - supervision of medical acts performed by nurse anesthetists." "[E]ven assuming the 1994 consent order could be read as evidencing an intent by the Medical Board to acquiesce in a collaboration standard, the medical board cannot be forbidden from advising its licensees on the standard of medical practice in order to protect the public interest."

Most importantly, the Court ruling made a strong statement that physician supervision is the law in North Carolina. "Physician supervision of nurse anesthetists providing anesthesia care, when that care includes prescribing medical treatment regimens and making medical diagnoses, is a fundamental patient safety standard required by North Carolina law." This is the first time a North Carolina appellate court has ruled on the issue of physician supervision of nurse anesthetists. As noted by the Court, the opinion reaches essentially the same conclusion on the requirement of physician supervision as the 1998 Attorney General's Opinion from then-Attorney General Mike Easley.

The full opinion can be found at http://www.aoc.state.nc.us/www/public/coa/opinions/2005/040682-1.htm