Medicine scores legal victories in scope of practice
■ High courts in Louisiana and Kentucky rejected moves by nonphysicians that physicians say infringe on the practice of medicine.
By Amy Lynn Sorrel — Posted May 11, 2009
In the face of bolder attempts by nonphysicians to expand their scope of practice, physicians say court victories in Louisiana and Kentucky send a strong message about the importance of safeguarding patient safety and the practice of medicine.
The Louisiana Supreme Court on April 13 declined to disturb an appeals court decision that rebuffed a nursing board rule allowing certified registered nurse anesthetists to perform interventional pain management procedures. The 1st Circuit Court of Appeal in December 2008 unanimously found that the rule violated state laws governing the practice of medicine.
The Supreme Court turned down a request by Louisiana's Board of Nursing to overturn the appeals decision, leaving in place an injunction permanently barring the regulation.
Physicians say the ruling, believed to be the first of its kind, could set a precedent for other states -- such as Indiana, Iowa and Tennessee -- where nurse anesthetists have succeeded in gaining regulatory and legislative approval to perform chronic pain management procedures.
The decision keeps the practice of medicine in the hands of doctors properly trained to handle such treatments, said Laxmaiah Manchikanti, MD, CEO and chair of the American Society of Interventional Pain Physicians. The ASIPP joined the case as a plaintiff with support from the American Medical Association and the American Society of Anesthesiologists.
"Our goal is to preserve patient safety," Dr. Manchikanti said, adding that such pain treatments do not simply involve administering injections but often include complex diagnoses.
Another key to the win was an opinion issued by the state medical board affirming interventional pain management as the practice of medicine, which the court noted in its decision, Dr. Manchikanti said. "That was our first step, and if someone fights, you always have that basis."
Physician leaders say that as nonphysician boards get more aggressive, medical boards are beginning to take more of an active role in such regulatory disputes by weighing in with position statements.
Such moves are likely to carry weight in the courts and the Legislature because "the medical board is there to protect the public and to decide what constitutes the practice of medicine," said Amy Phillips, general counsel to the Louisiana State Medical Society, which monitored the state case.
A different tack in Kentucky
Meanwhile in Kentucky, the state Supreme Court rejected an attempt by the state Board of Physical Therapy to prevent physicians from engaging in legitimate medical practices.
The board sued an orthopedic practice, claiming that state law limited who could use the term physical therapy and barred physicians from billing for such services because they were not licensed physical therapists.
The high court rejected that interpretation, saying the statute was intended to prevent unqualified individuals from providing or billing for such services, "not to protect physical therapists against competition from other qualified health care providers." Doctors -- trained to provide a wide range of medical services -- were exempt from the statutory prohibition, judges said unanimously.
"This [case] had nothing to do with patient safety. This was about competition," said Charles J. Cronan IV. He represented the Kentucky Medical Assn. and the Litigation Center of the American Medical Association and State Medical Societies, which jointly filed a friend-of-the-court brief in the case. Cronan added that the decision could have a wide-ranging impact.
"If this was just the physical therapy board, it would be one thing. But this is about anybody who wants to expand their scope or carve away little pieces of what have traditionally been the practice of medicine."
Allied health professional organizations that weighed in on the two cases fear that the decisions will hurt access and quality of care.
Mitchell H. Tobin, senior director of state government affairs for the American Assn. of Nurse Anesthetists, said the Louisiana ruling makes the state the only one that does not consider certain pain management services within the scope of practice of nurse anesthetists, despite rigorous training standards. The AANA filed a brief in the case.
With a growing elderly population with chronic pain, "you can't prohibit an entire class of providers from delivering this care and carve out a monopoly for physicians," Tobin said. Legislative options could be pursued to reverse the court decision, he said.
Kentucky Board of Physical Therapy Chair Ron Barbato said the agency will consider strengthening its regulations in response to the ruling there.
The American Physical Therapy Assn., which filed a brief in the case, pointed to a conflicting 1999 Pennsylvania Supreme Court ruling enforcing a similar state law against chiropractors, even though they were licensed to provide certain physical therapy services.
Barbato said the Kentucky case "was never about prohibiting physicians from doing what they are qualified to do. This is about protecting the public from misrepresentations in health care so [patients] understand when they are sitting in front of someone, that someone is in fact a physical therapist and [patients] are getting billed for physical therapy."