arties to the Louisiana lawsuit Spine Diagnostics Center of Baton Rouge, Inc., versus Louisiana State Board of Nursing returned to court in November to address several unresolved issues. Plaintiffs sought a declaratory judgment that the nursing board’s 2005 advisory opinion, which is the subject of the lawsuit, substantively expanded the scope of practice of a nurse anesthetist into an area where they have not traditionally practiced (i.e., chronic or interventional pain management). Additionally, the court had been asked to declare that the practice of interventional pain management is solely the practice of medicine. Lastly, Spine Diagnostics returned to court in order to seek a permanent injunction prohibiting the nursing board from enforcing the advisory opinion. The appellate court had previously ordered a preliminary injunction prohibiting the nursing board from enforcing the advisory opinion and prohibiting the nurse anesthetist who sought the opinion from performing such procedures. In connection with the permanent injunction, the nursing board would be required to remove the advisory opinion from the nursing board’s Web site and publish the trial court’s opinion on the Web site.

On January 10, 2008, the court issued its ruling, which provides the following, among other things:

• The practice of interventional pain management is not the scope of practice of a nurse anesthetist.

• The practice of interventional pain management is solely the practice of medicine.

• The advisory opinion issued by the nursing board is an effort to substantively expand nurse anesthetist scope of practice and is an improper attempt at rule making.

• A permanent injunction issue prohibiting the nursing board from enforcing the statement.

Chronic pain management is not within the traditional scope of practice of a nurse anesthetist
To establish the above assertion, Spine Diagnostics began by distinguishing chronic pain procedures from acute pain. The plaintiffs argued that the treatment of chronic pain involves the administration of steroids, analgesics and anesthetics with a minute margin of error. Conversely, the treatment of acute pain maintains a larger margin of error and consists primarily of the administration of anesthetics on a larger scale in a surgical or operating room setting. Testimony discussed the complexity of each pain procedure and use of fluoroscopy when performing chronic pain management. Additionally, Spine Diagnostics emphasized the diagnostic element of chronic pain management. The pain physician must assess and diagnose the patient and will often perform a different pain management procedure than prescribed by the referring physician. A pain physician must also recognize potential complications. Lastly, testimony addressed complications associated with chronic pain management procedures, such as infections, bleeding, arterial damage, nerve damage, paralysis, brainstem injury and death.

Furthermore, the plaintiffs analyzed Louisiana law to establish that chronic pain management is not within nurse anesthetist traditional scope of practice. The Louisiana Nurse Practice Act provides that the “practice of nursing... shall not be deemed to include acts of medical diagnoses or medical prescriptions of therapeutic or corrective nature.” Therefore, nurse anesthetists who are subject to the Louisiana Nurse Practice Act are prohibited from performing a medical diagnosis, which is required for the administration of chronic pain management procedures.
Lastly, Spine Diagnostics dismissed each element that is required to establish traditional scope of practice: a) history of nurse anesthetist scope of practice; b) sufficient education and training; c) supporting evidence; and d) an appropriate regulatory environment.

Absence of history: Plaintiffs contended that there is an absence of history of nurse anesthetists performing pain management procedures. According to testimony of representatives of the nursing board, they were not aware of any nurse anesthetists who performed such procedures until a nurse anesthetist requested an advisory opinion on this issue. Moreover, deposition testimony from the American Association of Nurse Anesthetists indicated that few nurse anesthetists nationally practice chronic pain management procedures.

Insufficient education and training to perform chronic pain management procedures: First, the plaintiffs emphasized the differences in education between nurse anesthetists and physicians. Second, Spine Diagnostics offered into evidence nurse anesthetist course curricula to establish that the nurses do not receive education in the specific procedures performed in chronic interventional pain management and compared pain certification requirements of physicians and nurses. Spine Diagnostics argued that the certification examination required of physicians exclusively tests the applicants’ knowledge of pain management as opposed to the nurses’ examination, which does not contain extensive questioning concerning pain management. Regarding training, plaintiffs asserted that the curricula of two weekend courses fail to demonstrate sufficient training in the field of chronic pain management procedures and offered testimony regarding the lack of requirements the profession imposes on itself to perform pain management procedures.

Lack of supporting evidence: Spine Diagnostics argued that overwhelming evidence supports their position that chronic pain management procedures are not within traditional scope of practice of nurse anesthetists. Plaintiffs supported this assertion by referencing 1) three studies that demonstrated patient safety concerns¹; 2) a case involving a nurse anesthetist who performed a chronic pain management procedure, without physician oversight, which resulted in paralysis of the patient; and 3) reimbursement issues. The plaintiff’s position was that the challenges the nurses have experienced in obtaining reimbursement for chronic pain management procedures (by Medicare and private insurers) suggested that such procedures are not within their traditional scope of practice.

Inappropriate regulatory environment: Lastly, testimony from a representative of the nursing board indicated that the nursing board does not have a mechanism to regulate nurse anesthetists’ performance of chronic pain procedures unless a complaint is filed and that the nursing board presumed the supervising physician and hospital (via credentialing procedures) would regulate the nurses.

In conclusion, Spine Diagnostics emphasized the complexity of chronic pain management and that nurse anesthetists are not authorized per Louisiana law to make a medical diagnosis, which is an essential component to performing such procedures. The plaintiffs also refuted the elements required to establish what constitutes traditional scope of practice. The Louisiana Society of Anesthesiologists and ASA continue to monitor whether this decision will be appealed.

Reference:
1. Studies: Jeffrey Silber, M.D. (2000); Hector Vila, Jr., M.D. (2003); J.P. Abenstein, M.D. and Mark A. Warner, M.D.

Lisa Percy, J.D., manages state affairs for ASA’s Office of Governmental and Legal Affairs in Washington, D.C.