Tennessee hospitals oppose office-based surgery rules

Tennessee physicians should not be allowed to perform surgeries requiring general anesthesia in their offices, even though the state's Board of Medical Examiners regulates it, according to a lawsuit the Tennessee Hospital Assn. filed in September.

The THA is seeking an injunction to stop new board rules allowing some general anesthesia procedures from taking effect Oct. 17.

The hospital association also is asking the court to declare the regulations invalid. The THA claims that the new rules would drive business away from hospitals and ambulatory surgery centers, as well as create a patient safety issue.

"Of even greater concern is the fact that major surgery will be performed in doctor offices that are not properly regulated, and not properly staffed and equipped to handle the surgery," the lawsuit states. "The [Board of Medical Examiners] rules make hospitals the final safety net for these patients."

The rules, which the board created with physician and hospital input, create standards and definitions for surgeries up to a Level III classification. Level III surgeries, which require general anesthesia, can only last six hours, and any patient who needs more than 12 hours of recovery time "must be transferred to a hospital for continued postoperative care," according to the rules.

Physicians support rules

The Tennessee Medical Assn. supports the new rules because they "put a ceiling on the complexity of surgery that can be performed in an office," said Yarnell Beatty, director of the legal and government affairs division for the TMA.

Before the board published the rules, there were no explicit details governing how advanced office-based surgeries could be.

"They're reasonable for physicians, but they provide a sense of safety," Beatty said.

Beatty said the rules were created mainly to govern the handful of physicians -- most of them cosmetic or plastic surgeons -- who perform long, complex procedures in their offices.

However, the hospital association disagreed with allowing Level III procedures to be performed in physician offices because patient safety could be jeopardized, said Craig A. Becker, THA's president and CEO.

"Some people have characterized this as a financial issue, but in Tennessee, that horse has left the barn years ago," Becker said. "It really is more of a patient safety issue.

"We were fine with Levels I and II," which do not require general anesthesia, Becker said. "Our primary concern was Level III."

In its lawsuit, the hospital association says the rules should be declared invalid because the state Legislature has not authorized the Board of Medical Examiners to regulate office-based surgeries. Even if the Legislature did decide to regulate such procedures, that duty should fall to the more experienced Board for Licensing Health Care Facilities, which regulates hospitals and ambulatory surgery centers, according to the lawsuit.

The board and health department asked physicians to help devise the rules because they "wanted to have physician buy-in" once they were published, "because it was the regulation of medicine," Beatty said.

"Physicians would be in the best position to promulgate rules in patient safety," Beatty said.

A call to the Tennessee Dept. of Health, which governs the Board of Medical Examiners, was referred to the state's attorney general office, which declined to comment. The state had not filed a response to the lawsuit by press time.

Other states face similar questions

Office-based surgeries have been the subject of some debate over the last few years, as some studies have questioned their safety.

A study published in a 2003 Archives of Surgery, for example, found that during a two-year span, Florida patients were 10 times more likely to die or be injured in a surgery performed at a physician's office than in one performed at a surgery center.

While some states, like Florida, have wrestled with this issue for several years and have even placed moratoriums on some procedures, Beatty said the rules in Tennessee apply only to a small number of physicians.

"This is less than 1% of physicians," he said.