"I'm not a medical doctor, and I can't tell you what could go wrong, but a number of complications could arise because of a reaction to whatever drug that could be administered, or something related to the surgery itself. Whatever it was, a trained physician, however, would be capable of reacting to that and making sure the patient received good care."
Do says that the physicians' issue is that California law does not allow that scope of practice liberty for nurse anesthetists. That's simply a legal distinction, and not one up for interpretation by the governor, or either the Medical Board of California or the California Board of Registered Nursing, neither of which has weighed in on the issue.
California is one of 16 states that allow nurse anesthetists to practice without physician supervision, nearly all of them largely rural. They are Alaska, Iowa, Idaho, Kansas, Minnesota, Montana, Nebraska, New Hampshire, New Mexico, North Dakota, Oregon, South Dakota, Washington and Wisconsin. Last year, Colorado became the 16th. New Jersey would have been the 17th, after the governor of that state also opted out, but that decision was blocked by the New Jersey legislature.
But Do says that in many of those states, there are strict limits on what types of procedures are okay for nurse anesthetists to administer anesthesia drugs without physician supervision.
"We certainly haven't seen evidence or statistics that in states where this rule was lifted that there are severe consequences," Do acknowledges.
"But I believe that in those states, a lot of what's going on is more routine surgeries or routine procedures where nurses are administering anesthesia. There's a lot of that going on in California as well, but it's the fact that there's no limit and no restriction that would govern or guide how surgeries are to be performed in California. In any kind of surgery there does not have to be a physician, even in any kind of surgery – even for open heart surgery."
California is the first largely urban state to opt-out of the Medicare requirement.
Last year, several representatives accused the CMA and the anesthesiologists of simply being protective of their revenue stream, and for being paternalistic about the practice of medicine.
Phil Recht of Mayer Brown LLP, attorney for the California Association of Nurse Anesthetists, said in an interview Wednesday that the San Francisco judge's decision "made a point of saying that (the physicians) presented no evidence whatsoever to demonstrate any safety problems, nor did they rebut CANA's claims that there were no safety problems. There have been no safety related incidents in any opt-out state since opt-outs were first initiated years ago. And in our view, this is just a red herring argument."