Van De Kamp, 040584 CAAGO, AGO 83-1007

Docket Nº:AGO 83-1007
Case Date:April 05, 1984
Court:California
 
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JOHN K. VAN DE KAMP Attorney General
JACK R. WINKLER Deputy Attorney General
AGO 83-1007
No. 83-1007
California Attorney General Opinion
Office of the Attorney General State of California
April 5, 1984
         THE HONORABLE PAUL B. CARPENTER, MEMBER OF THE CALIFORNIA SENATE, has requested an opinion on the following question:          May a Certified Registered Nurse Anesthetist lawfully administer regional anesthetics pursuant to a "standardized procedure."          CONCLUSION          A Certified Registered Nurse Anesthetist may lawfully administer a regional anesthetic when ordered by and within the scope of licensure of a physician, dentist or podiatrist but not pursuant to a "standardized procedure."          ANALYSIS          We are asked whether a Certified Registered Nurse Anesthetist may lawfully administer regional anesthetics under a standardized procedure established pursuant to section 27251 of the Nursing Practice Act.          Chapter 696, Statutes of 1983, added article 7 (commencing with § 2825) entitled "Nurse Anesthetists" to the Nursing Practice Act. Section 2826(a) defines nurse anesthetist to mean "a person who is a registered nurse, licensed by the board and who has met standards for certification from the board." Section 2830 provides that the Board of Registered Nursing (the board) "shall issue a certificate to practice nurse anesthesia to any person who qualifies under this article and is licensed pursuant to the provisions of this chapter." Section 2833.3 provides that nothing in the article "shall be construed to limit a certified nurse anesthetist's ability to practice nursing." Section 2833.5 provides:
"Except as provided in Section 2725 and in this section, the practice of nurse anesthetist does not confer authority to practice medicine or surgery."
         Section 2833.6 provides: "This chapter is not intended to address the scope of practice of, and nothing in this chapter shall be construed to restrict, expand, alter, or modify the existing scope of practice of, a nurse anesthetist." Thus article 7 simply provides for the certification of qualified registered nurses as "nurse anesthetists" and does not add to or subtract from the authority the nurse anesthetist has as a registered nurse. This leaves the scope of practice of the Certified Nurse Anesthetist the same as it was before certification. It means that the scope of practice of the nurse anesthetist is the same as the scope of practice authorized by his or her license as a registered nurse. Accordingly we are relegated to the Nursing Practice Act and the scope of the practice of nursing to determine whether a certified registered nurse anesthetist may administer regional anesthetics. The use of nurses to administer anesthetics has had a turbulent history in California law. We turn now to an outline of that history to better understand the recent revisions of section 2725 which defines the practice of nursing.          In the depths of the great depression one Dagmar Nelson was employed as a registered nurse in a Los Angeles hospital. She was assigned to the operating room with the duty of administering general anesthetics to patients undergoing surgery. William V. Chalmers-Francis, M.D., sought to enjoin this practice claiming that Dagmar's duties constituted the illegal practice of medicine in violation of the Medical Practice Act. Judgment denying the injunction was appealed to the California Supreme Court.          At the time in question California statutes provided for the licensing of registered nurses but did not define or restrict their functions. The Supreme Court noted that the well-supported findings showed conclusively that everything Dagmar had done in the operating room was done under the immediate direction and supervision of the operating surgeon and his assistants. The court then stated that the evidence had established that administration of anesthetics by nurses under the immediate direction and supervision of the operating surgeon was the uniformly-accepted practice and procedure in operating rooms. The court stated twice in its opinion that such practice was not diagnosing or prescribing within the meaning of the Medical Practice Act.2 The court then declared that "it is the legally established rule that they [the nurses engaged in such practices] are but carrying out the orders of the physicians to whose authority they are subject. The surgeon has the power, and therefore the duty, to direct the nurse and her actions during the operation." The court affirmed the judgment. (Chalmers-Francis v. Nelson (1936) 6 Cal.2d 402.)          In 1939 the Legislature enacted Business and Professions Code sections 2725 and 2726 to read as follows:
"2725. The practice of nursing within the meaning of this chapter is the performing of professional services requiring technical skills and specific knowledge based on the principles of scientific medicine, such as are acquired by means of a prescribed course in an accredited school of nursing as defined herein, and practiced in conjunction with curative or preventive medicine as prescribed by a licensed physician and the application of such nursing procedures as involve understanding cause and effect in order to safeguard life and health of a patient and others. "A professional nurse, within the meaning of this chapter, is a person who has met all the legal requirements for licensing as a registered nurse in the State and who for compensation or personal profit engages in nursing as the same is hereinabove defined. "2726. This chapter confers no authority to practice medicine or surgery or to undertake the prevention, treatment or cure of disease, pain, injury, deformity, or mental or physical condition in violation of any provision of law." (Stats. 1939, ch. 807, p. 2349, § 2.)
         In 1961 the case of Magit v. Board of Medical Examiners (1961) 57 Cal.2d 74 was decided by the California Supreme Court. In that case Dr. Magit, a director and chief anesthesiologist in a Beverly Hills hospital employed three foreign physicians who were expert anesthetists but were not licensed to practice medicine in California. He employed them to administer anesthetics in the hospital pursuant to his authorization. The Board of Medical Examiners found that Dr. Magit aided and abetted the three physicians in the unlicensed practice of medicine and surgery in the hospital, that he was guilty of unprofessional conduct and revoked his license to practice medicine in California. Dr. Magit appealed.          The court first decided that administration of anesthetics constituted the practice of medicine and surgery under the Medical Practice Act. In this regard the court observed:
"Our statutes do not specifically provide that one who administers anesthetics must have a license to practice medicine or any of the other healing arts. Whether the administration of anesthetics by the three unlicensed persons was illegal and made Dr. Magit guilty of unprofessional conduct depends primarily upon whether it constituted the practice of 'any system or mode of treating the sick or afflicted' within the meaning of sections 2141 and 2392. If the administration of anesthetics does not come under these provisions, everyone would be free to administer them since there is no other statutory restriction which would apply. Those who administer anesthetics 'use drugs or what are known as medical preparations in or upon human beings' and, in administering spinal or epidural anesthetics, they 'penetrate the tissues of human beings' within the meaning of section 2137 of the code, which includes the quoted terms in setting forth the practice authorized by a physician's and surgeon's certificate. The application of anesthetics is obviously an integral part of the surgical treatment which it facilitates, and it falls directly within the language of sections 2141 and 2392. [3] "Moreover, the code speaks of anesthetics in a manner which indicates a legislative intent that their use be considered as coming within the practice of medicine. Section 2192 includes in the curriculum required of applicants for a physicians' and surgeon's certificate adequate instruction in 'surgery, including . . . [a]nesthesia,' and section 2139 provides that no chiropodist shall 'use an anesthetic other than local.' Section 2139, of course, is not intended to prohibit chiropodists from performing acts generally permitted to be done by everyone, and since it precludes a chiropodist from administering general, spinal, or epidural anesthetics, it clearly indicates that the right to give such
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