Ortiz v. Department of Health

882 So. 2d 402, 2004 WL 1621440
CourtDistrict Court of Appeal of Florida
DecidedJuly 21, 2004
Docket4D03-1763
StatusPublished
Cited by3 cases

This text of 882 So. 2d 402 (Ortiz v. Department of Health) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ortiz v. Department of Health, 882 So. 2d 402, 2004 WL 1621440 (Fla. Ct. App. 2004).

Opinion

882 So.2d 402 (2004)

Victor ORTIZ, Appellants,
v.
DEPARTMENT OF HEALTH, BOARD OF MEDICINE, Appellee.

No. 4D03-1763.

District Court of Appeal of Florida, Fourth District.

July 21, 2004.

William E. Williams and J. Andrew Bertron, Jr. of Huey, Gilday, Tucker, Schwartz & Williams, P.A., Tallahassee, for appellant.

Charles J. Crist, Jr., Attorney General, and Edward A. Tellechea, Assistant Attorney General, Tallahassee, for appellee Board of Medicine.

WARNER, J.

Appellant, a certified registered nurse anesthetist, ("CRNA") challenges Administrative Rule 64B8-9.009(6)(b)1.a., adopted by the Board of Medicine ("Board"), which requires a surgeon in an outpatient facility to have a licensed M.D. or D.O. anesthesiologist present to supervise the administration of anesthesia. He argues that the *403 Board exceeded its delegated grant of authority when promulgating the rule, and the rule contravenes a specific statutory prohibition under section 458.303(2), Florida Statutes (2002). The administrative law judge determined that the Board acted within its authority when adopting the rule. However, we disagree and conclude that the Board exceeded its delegated authority. We therefore reverse.

Section 464.012, Florida Statutes (2002), of Chapter 464 governing the nursing profession, provides the criteria for becoming an advanced registered nurse practitioner, including a CRNA. Those requirements include a current license to practice nursing and one or more of the following requirements:

(a) Satisfactory completion of a formal postbasic educational program of at least one academic year, the primary purpose of which is to prepare nurses for advanced or specialized practice.
(b) Certification by an appropriate specialty board. Such certification shall be required for initial state certification and any recertification as a registered nurse anesthetist or nurse midwife. The board may by rule provide for provisional state certification of graduate nurse anesthetists and nurse midwives for a period of time determined to be appropriate for preparing for and passing the national certification examination.
(c) Graduation from a program leading to a master's degree in a nursing clinical specialty area with preparation in specialized practitioner skills.

§ 464.012(1). When a CRNA receives that advanced license, he or she may, "to the extent authorized by established protocol approved by the medical staff of the facility in which the anesthetic service is performed," perform a variety of medical procedures connected with the administration of anesthesia. § 464.012(4)(a).

Chapter 458 governs the practice of medicine in the state. The Legislature created the Board of Medicine to regulate physicians. See § 458.307, Fla. Stat. (2002). It conferred rulemaking authority on the Board "to implement the provisions of this chapter conferring duties upon it." See § 458.309(1), Fla. Stat. (2002). However, in section 458.303(2), the Legislature limited the Board's rulemaking function as follows:

...
Nothing in ... s. 458.309 or s. 458.331 ... shall be construed to prohibit any service rendered by a registered nurse or a licensed practical nurse, if such service is rendered under the direct supervision and control of a licensed physician who provides specific direction for any service to be performed and gives final approval to all services performed.

To insure that physicians do not practice beyond their level of competency, the Legislature gave the Board the authority to establish rules governing standards of practice. Section 458.331, Florida Statutes (2002), sets forth grounds for disciplinary action. Section 458.331(1) lists acts that "constitute grounds for denial of a license or disciplinary action," including:

(v) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he or she is not competent to perform. The board may establish by rule standards of practice and standards of care for particular practice settings, including, but not limited to, education and training, equipment and supplies, medications including anesthetics, assistance of and delegation to other personnel, transfer agreements, sterilization, records, performance of complex or multiple procedures, *404 informed consent, and policy and procedure manuals.

(Emphasis added). Pursuant to that authority, the Board adopted standards of care for surgeons practicing in an office setting. See Fla. Admin. Code R. 64B8-9.009. It set different standards depending upon the level of surgery being performed. For level III surgery, the most complicated surgery which can be performed in an office setting, the Board enacted the following rule regarding training:

The surgeon must have staff privileges at a licensed hospital to perform the same procedure in that hospital as that being performed in the office setting or must be able to document satisfactory completion of training such as Board certification or Board qualification by a Board approved by the American Board of Medical Specialties or any other board approved by the Board of Medicine or must be able to demonstrate to the accrediting organization or to the Department comparable background, training and experience. In addition, the surgeon must have knowledge of the principles of general anesthesia. If the anesthesia provider is not an anesthesiologist, there must be a licensed M.D., or D.O., anesthesiologist, other than the surgeon, to provide direct supervision of the administration and maintenance of the anesthesia.

Fla. Admin. Code R. 64B8-9.009(6)(b)1.a. (emphasis added). Appellant challenges the last sentence of this rule. Essentially, the rule requires an anesthesiologist to directly supervise the administration of anesthesia in an outpatient surgery center. If an anesthesiologist is present, then there is no need for a CRNA, as they both do essentially the same things. Indeed, "[t]he parties stipulated that since the adoption of the challenged rule, the physicians for whom [appellant] previously provided anesthesia services four or five days a week will no longer employ him for level III office surgeries because they believe that it is unnecessary and cost-prohibitive to pay him to provide the actual anesthesia services and an anesthesiologist to directly supervise him. Consequently, [appellant's] revenues have been reduced and his office practice has been substantially and adversely affected." Ortiz v. Dep't of Health, Bd. of Med., No. 03-0011RX, at 4-5 (DOAH Apr. 7, 2003) available at http://www.doah.state.fl.us/ros/2003/03-0011.doc.

We preface our analysis of this rule by noting that the parties agree that patient safety is not an issue in this proceeding. While the Board has studies to support its rule, this same rule was challenged on other grounds in Florida Academy of Cosmetic Surgery v. Department of Health, Board of Medicine, No. 00-0951RP (DOAH Nov. 16, 2000), and the administrative law judge found that there was no evidence to indicate any significant difference in patient outcomes whether anesthesia was administered by a CRNA or an anesthesiologist. See id. at 25. The judge's ruling was reversed in Florida Board of Medicine v. Florida Academy of Cosmetic Surgery, Inc., 808 So.2d 243 (Fla. 1st DCA 2002), only because the judge used the wrong standard of review of the evidence.

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Bluebook (online)
882 So. 2d 402, 2004 WL 1621440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortiz-v-department-of-health-fladistctapp-2004.