Legal Briefs Index by Year

The articles below were first published in the AANA Journal and are being reprinted on the AANA website for reference and study. All Legal Briefs columns can currently be found in the AANA Journal area. They are also indexed by keyword.
 
 
 
Please note: These articles are not intended as legal advice nor are they advice on the law of any state. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.
 
 2014 |  2010 | 2008 | 2007 | 2006
 
2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1999 | 1998 | 1997 | 1996 | 1995
 
1994 | 1993 | 1992 | 1991 | 1990 | 1989 | 1988 | 1987 | 1986 | 1985 | 1984
 
  
February 2014
Mark J. Silberman
It has never been a secret to Certified Registered Nurse Anesthetists (CRNAs) that anesthesiologists are often not able to consistently comply with all of the requirements of TEFRA (Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97–248).
 
 
 
2010
 
 
August 2010
Patient Privacy and Social Media
Amy L. Hader, JD
Evan D. Brown, JD
Healthcare providers using social media must remain mindful of professional boundaries and patients' privacy rights. Facebook and other online postings must comply with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), applicable facility policy, state law, and AANA's Code of Ethics.
 
 
 
 
2008
 
 
December 2008
The Medical-Legal Quandary of Healthcare in Capital Punishment: An Ethical Dilemma for the Anesthesia Provider
Kevin W. Johnson, CRNA, MHS
Participation by skilled medical personnel has been a debate between the medical and legal communities since the inception of lethal injection. Healthcare should reevaluate the ethical and moral principle of beneficence as the legal system attempts to evaluate the constitutionality of lethal injection. Can a nurse or doctor step out of the role of medical professional, use knowledge and skill to make death by lethal injection more humane, and not violate the ethical principle of "do no harm"?
 
 
 
April 2008
Liquidated Damages
Gene A. Blumenreich, JD
How does one distinguish between a liquidated damage clause and a penalty? First you have to decide if damages are difficult to ascertain or will damage be fairly clear. Is the purpose of the liquidated damage provision simply to create a penalty for a breach?
 
 
 
 
2007
 
 
April 2007
Another article on the surgeon's liability for anesthesia negligence
Gene A. Blumenreich, JD
As a legal matter, courts did not decide questions of liability based on what state agency happened to issue the provider's license. Courts impose liability only when a surgeon controlled the procedure or participated in the negligence; not simply because the surgeon was working with, or supervising, a nurse anesthetist.
 
 
 
February 2007
Operating room fires: The CRNA and the deposition
Rebecca F. Cady, RNC, JD, BSN
This column will discuss how surgical fires can be prevented and provide sources of further information on this important risk management issue for CRNAs.
 
 

 
2006
 
 
April 2006
Can a CRNA be medically directed and be an independent contractor for tax purposes at the same time?
Ronald L. Van Nest, CRNA, MA
In many cases there are tax advantages to being an independent contractor. However, to have that tax advantage, a CRNA must be an independent contractor.
 

February 2006
Awareness
Gene A. Blumenreich, JD
Awareness has now reached a level where we know that it is there; we know that it happens but there is, as yet, no "magic bullet," no remedy that the profession believes will guarantee that it can be prevented or that it can be accurately identified and, therefore, eliminated.
 
 
 
 
2005
 
 
December 2005
Sweetwater Hospital Association v Carpenter
Gene A. Blumenreich, JD
In the Sweetwater case, the court refused to require the parties to explain what they meant when they referred to the "position" that would be offered the newly graduated nurse anesthetist. The court thought the language of the contract was clear.
 
 
August 2005
The Doctrine of Corporate Liability
Gene A. Blumenreich, JD
If the Doctrine of Corporate Liability continues to grow making hospitals liable for mishaps that occur in their operating rooms, does the surgeon need to worry about the courts holding the surgeon liable as well? Will the hospital’s liability replace the individual liability of the many people who take care of the hospital’s patients?
 
 
February 2005
Nurse Anesthetists and the Americans with Disabilities Act
Gene A. Blumenreich, JD
While everyone supported the goals of the Americans with Disabilities Act, some lawyers were unclear about the changes that the Act would bring and effect they might have. In anesthesia, what disabilities would be protected by the Act and what kinds of accommodation would hospitals and employers have to make for anesthetists with disabilities?
 
 
 
 
 
2004
 
 
December 2004
Just following orders
Gene A. Blumenreich, JD
The Supreme Court of South Carolina issued an opinion in the case of Durham v Vinson. The issue before the appellate court was the extent to which a jury can be told that someone refused to provide credentialing records when those records were confidential and, by law, did not have to be provided. The issue that most intrigued the author the most is one that was suggested by the facts but never discussed in the decision.
 

August 2004
The power of words
Gene A. Blumenreich, JD
Someone not familiar with the American legal system might claim that if healthcare practitioners would require these agreements before providing healthcare services, there would be no malpractice lawsuits, and the healthcare malpractice insurance crisis would disappear. There are several cases where a healthcare practitioner has required, as a condition to performing healthcare service, that the patient must agree that the practitioner performing the service will not have any legal responsibility. The only problem with such a scheme is that it does not work.
 
 
June 2004
Expert testimony*
Gene A. Blumenreich, JD
Do nurse anesthetists and anesthesiologists handle the same matters differently? Are there 2 standards of care in anesthesia? Professionals set their own standard of care and when courts and juries need to know what the standard is, members of the profession offer expert testimony.
 
 
April 2004
Standards of care and the ASA medical direction statement
Gene A. Blumenreich, JD
Recently, a newsletter directed to both anesthesia providers and lawyers, quoted several malpractice attorneys who were under the impression that the American Society of Anesthesiologists (ASA) Statement on the Anesthesia Care Team was a standard of care and that hospitals employed CRNAs only to save money.
 
 
 
 
2003
 
 
December 2003
Due process
Gene A. Blumenreich, JD
What is "due process?" Where does it come from? And to whom does it apply? The concept of due process is still being examined by the courts. It was only in 1963 that the Supreme Court ruled that a person accused of a crime not only had a right to be represented by an attorney but also if the accused was poor, to have one appointed and paid for by the state.
 
 
August 2003
United States Supreme Court upholds "any willing provider" statutes
Gene A. Blumenreich, JD
Many state legislatures feel that "any willing provider" legislation was necessary to protect those insured who are unwilling to lose their freedom to choose providers. At the same time, "any willing provider" statutes protect providers who might otherwise be excluded from coverage by insurance companies either out of hostility or ignorance. Find out how this affects CRNAs.
 
 
June 2003
The danger of using a nurse who is not a CRNA to administer anesthesia
Gene A. Blumenreich, JD
Many Certified Registered Nurse Anesthetists (CRNAs) have expressed concern about hospitals and other institutions requiring nurses who do not have anesthesia education to administer and monitor conscious sedation. There are several issues.
 
 
April 2003
More help for whistleblowers
Gene A. Blumenreich, JD
The Sarbanes-Oxley Act of 2002 contained a little noticed provision establishing criminal sanctions for those who knowingly retaliate against whistleblowers. 
 
 
 
2002
 
 
December2002
Conflict of laws
Gene A. Blumenreich, JD
From time to time, state courts come to different conclusions, and legal doctrines evolve in different ways. While these differences appear small to most of us, these differences sometimes affect the outcome of cases. When we have disputes with people who come from states that have different legal rules than our own, how do the courts determine which law to use?
 
 
 
October 2002
Fairness in credentialing and the Certified Registered Nurse Anesthetist
Gene A. Blumenreich, JD
The author discusses a number of cases involving the granting of privileges or determining of credentials for healthcare professionals by hospitals.
 
 
August 2002
Charting
Gene A. Blumenreich, JD
The author discusses a number of cases involving anesthesia and charting. Although all but 1 of the cases involves anesthesiologists, the courts view charting in exactly the way the AANA Scope and Standards for Nurse Anesthesia Practice imply they do.
 
 
June 2002
Nurse anesthesia students and liability
Gene A. Blumenreich, JD
This topic raises issues of importance to students, their teachers, and to all nurse anesthetists who work with students.
 
 
April 2002
The difficulties of complying with TEFRA
Gene A. Blumenreich, JD
In a remarkable coincidence, 2 cases were decided a day apart, on January 17 and 18, 2002, which had as their underlying cause anesthesiologists' attempts to cover up their failure to comply with Medicare reimbursement criteria.
 
 
February 2002
CRNAs as independent contractors
Gene A. Blumenreich, JD
One impact of the shortage of anesthesia personnel in the past few years has been the number of CRNAs who consider themselves as independent contractors rather than as employees.
 
 
 
2001
 
 
December 2001
Vicarious liability for anesthesiologists
Gene A. Blumenreich, JD
In all the recent flurry of activity over supervision, the policy makers often seem unaware that anesthesiologists make mistakes, too. How can anesthesiologists suggest supervision of nurse anesthetists as a cure-all when anesthesiologists make the same mistakes? If they promote the anesthesia care team as preferable to nurse anesthetists working directly with surgeons, why aren't they promoting it over anesthesiologists working directly with surgeons?
 
October 2001
Anesthesia personnel and the Americans with Disabilities Act
Gene A. Blumenreich, JD
What constitutes a disability under the Americans with Disabilities Act? The courts recognized as disabled those suffering conditions not always recognized as disabilities, including a wide variety of mental conditions that might affect an individual's vigilance. Did this mean that employers were going to be forced to permit people to administer anesthesia even when they were not in a condition where they could devote their full and single-minded attention to the patient?
 
 
June 2001
How settlement affects the legal process
Gene A. Blumenreich, JD
Whether a case is going to be tried before a jury or settled, plaintiffs have to cast their nets very broadly on defendants and potential defendants. When a lawsuit is filed, it is necessary to include all of the possible defendants who could have caused the damage and to charge them with as many of the theories as possible by which they can be held liable for the damage.
 
 
April 2001
Conflict for the court
Gene A. Blumenreich, JD
A controversial treatment for heroin addiction is administered and goes awry. The plaintiff files a compliant alleging lack of informed consent, assault and battery, breach of contract, and use of a product that was not approved by the US Food and Drug Administration. How do negligence per se and res ipsa loquitur come into play?
 
February 2001
Anesthetists and the criminal law
Gene A. Blumenreich, JD
A recent criminal prosecution of an anesthesiologist contains lessons not only about criminal prosecution but also about dealing with attorneys and the importance of carefully understanding contracts.
 
 
 
 
 
2000
 
 
October 2000
Supervision
Gene A. Blumenreich, JD
Those opposed to nurse anesthesia, having misused supervision to discourage the use of nurse anesthetists, refuse to acknowledge their role and create yet a new attack -- that the AANA is seeking to establish CRNA independent practice.
 
 
August 2000
One more battle in the competitive struggle
Neil P. Motenko, JD
There are a lot of reasons that the competitive battle between nurse anesthetists and anesthesiologists has heated up in the past few decades. An antitrust case in Minnesota illustrates to what extent some anesthesiologists are willing to go to in order to keep "control."
 
 
June 2000
Being smart about malpractice
Gene A. Blumenreich, JD
Is there anything about how you administer anesthesia that might not survive scrutiny in court?
 
 
April 2000
The importance of following procedures in anesthesia
Gene A. Blumenreich, JD
Protocols and procedures play an important part in ensuring patient safety. They play an important part in the courtroom, too.
 
 
February 2000
The importance of being certified
Gene A. Blumenreich, JD
Such a high percentage of nurses giving anesthesia have been certified as CRNAs that some may overlook the distinction between a nurse anesthetist and a Certified Registered Nurse Anesthetist. Very few hospitals would want to risk defending a lawsuit over anesthesia administered by a nurse anesthetist who is not certified.
 
 
 
 
 
 
1999
 
 
October 1999
Partial-day absences for exempt employees: Who's counting?
Robert D. Webb, JD
What affects a salaried employee's exempt position and what doesn't? Several cases are discussed.
 
 
August 1999
Litigation is too important to be entrusted to lawyers
Gene A. Blumenreich, JD, AANA General Counsel
Whose interests are insurance companies and the lawyers they select to defend healthcare practitioners looking out for? Make sure it's your interests!
 
 
June 1999
Dismissal of the Minnesota qui tam action
Gene A. Blumenreich, JD, AANA General Counsel
Encouraging competition and reducing healthcare costs are good reasons to create independent service providers, but to do so solely to preserve physician jobs? Think again.
 
 
April 1999
Anesthesia: It's finally the practice of medicine
Gene A. Blumenreich, JD, AANA General Counsel
The practice of a profession is what that profession is allowed to do under its governing licensing laws.
 
 
February 1999
Significance of signing medical chart on legal liability
Gene A. Blumenreich, JD, AANA General Counsel
Even though medical charts are commonly found in healthcare, there seems to be confusion about their impact on legal liability.
 
 
 
 
 
 
1998
 
 
December 1998
Nurse anesthetists in the middle: Covenants not to compete
Gene A. Blumenreich, JD, AANA General Counsel
A covenant not to compete does affect the employee's ability to find a job. Find out how in this informative column.
 
 
October 1998
Positioning, padding, documentation and the CRNA
Gene A. Blumenreich, JD, AANA General Counsel
When it comes to positioning and padding, nurse anesthetists should make sure that their patients are properly padded and positioned. And that the proper documentation exists to prove proper procedures have been followed.
 
 
June 1998
Informed consent
Gene A. Blumenreich, JD, AANA General Counsel
Although this column has discussed the necessity for informed consent before, there have been some changes in the law that suggest that this subject is becoming even more difficult to understand.
 
 
April 1998
Do surgeons get sued when they work with anesthesiologists?
Gene A. Blumenreich, JD, AANA General Counsel
The type of license the anesthetist holds, whether MD or CRNA, is irrelevant to the quality of care they render.
 
 
February 1998
The overlap between the practice of medicine and the practice of nursing
Gene A. Blumenreich, JD, AANA General Counsel
The mistaken belief that nonphysicians are practicing medicine is not, unfortunately, limited to anesthesiologists. Many professions are authorized to practice in the same, related or similar fields, and as a result have overlapping practice areas. Anesthesia is an area which is both the practice of medicine and the practice of nursing.
 
 
 
 
 
 
1997
 
 
December 1997
Standard of care
Gene A. Blumenreich, JD, AANA General Counsel
The field of anesthesia is unique in healthcare because its two separate providers, anesthesiologists and nurse anesthetists, are direct competitors. However, there is only one standard of care in anesthesia.
 
 
October 1997
LaCroix case
Gene A. Blumenreich, JD, AANA General Counsel
A Texas Court of Appeals decision is discussed, one that upholds a jury award against a Texas Hospital for damage to a patient under the care of a non-negligent nurse anesthetist.
 
 
August 1997
Freedom of Information Acts and healthcare
Gene A. Blumenreich, JD, AANA General Counsel
To reveal or not to reveal, that is the question. Many states have adopted "Freedom of Information Acts," assuring citizens of access to records and documents maintained by government bodies. How much can be revealed?
 
 
June 1997
The nature of supervision
Gene A. Blumenreich, JD, AANA General Counsel
Supervision, despite its frequent appearance, remains one of the least understood concepts in nurse anesthetist practice.
 
 
April 1997
Double standards in anesthesia
Gene A. Blumenreich, JD, AANA General Counsel
Anesthetists, both CRNAs and anesthesiologists, are human. Anesthesia requires great effort, concentration and organization, and occasionally there are lapses. What is upsetting is that when a CRNA makes an error, the automatic response is anesthesiologist supervision or replacement.
 
 
February 1997
Res ipsa loquitur: Dental damage during anesthesia
Gene A. Blumenreich, JD, AANA General Counsel
One of the byproducts of safer anesthesia is the increase in the likelihood of a lawsuit when something does go wrong. Is there a "fixed number" of cases that will always involve dental damage due to intubation?
 
 
 
 
 
 
1996
 
 
December 1996
Expert testimony
Gene A. Blumenreich, JD, AANA General Counsel
When do the courts accept expert testimony about the standard of anesthesia care from a nurse anesthetist? When don't they? This column discusses various cases in point.
 
 
October 1996
Wrongful termination
Gene A. Blumenreich, JD, AANA General Counsel
Do nurses acting in the best interests of patients find that their decisions are always upheld by the courts? Not necessarily.
 
 
August 1996
Covenants not to compete
Gene A. Blumenreich, JD, AANA General Counsel
How does "employee at will" come to play in "covenants not to compete?" Where does consideration come in? These aspects and more are discussed.
 
 
June 1996
Improving technology
Gene A. Blumenreich, JD, AANA General Counsel
How do the courts rule when considering technology? Advancements made to products, and the subsequent purchase of new technology by hospitals don't automatically find that the older equipment is disposed of or that new staff members are made aware of the older systems' quirks.
 
 
April 1996
Abandonment
Gene A. Blumenreich, JD, AANA General Counsel
The discussion on abandonment is important because it might provide guidance to members of the nurse anesthesia profession about what may or may not be appropriate.
 
 
February 1996
Drennan v Community Health Investment Corporation
Gene A. Blumenreich, JD, AANA General Counsel
Does an adverse reaction to anesthesia indicate negligence per se on the part of the anesthetist? What about the hospital pharmacist allowing a CRNA to take possession of general anesthetic drugs? An interesting case touches on the many facets of trying to prove a negligence per se case.
 
 
 
 
 
 
1995
 
 
December 1995
Anesthesia and JCAHO
Gene A. Blumenreich, JD, AANA General Counsel
Despite years of complaints, nurse anesthesia remains largely unrepresented on the boards and panels of JCAHO. Several proposed standards revisions for surgery and anesthesia blurred the "licensed independent practitioner" outline. This column aims to clarify that outline and discuss its impact on legal liability for nurse anesthetists.
 
 
October 1995
The disruptive physician
Linda Williams, CRNA, JD
One of the most frustrating experiences for the hospital staff is dealing with the difficult, abusive physician and the sense of hopelessness which accompanies these day-to-day conflicts. In fact, there is legal precedent for dealing with these issues. This article serves to review some of the case law relevant to the abusive physician.
 
 
August 1995
Harassment in the workplace
Gene A. Blumenreich, JD, AANA General Counsel
Although it has been more than 30 years since Congress made sexual harassment a violation of federal law, the courts are still attempting to define the boundaries of the law, to agree on what behavior constitutes sexual harassment, and to determine what employers are obligated to do about it.
 
 
April 1995
The CRNA as an expert witness
Gene A. Blumenreich, JD, AANA General Counsel
Are there limits to a CRNA's expert testimony or the subject areas in which CRNAs may provide expert testimony?
 
 
February 1995
Antitrust enforcement policy relating to healthcare
Edgar H. Brenner, JD, AANA Antitrust Counsel
This document covers nine topics, several of which are of direct interest to nurse anesthetists, and will affect the way in which anesthetists and anesthesiologists practice their profession.
 
 
 
 
 
1994
 
 
December 1994
Statute of limitations
Gene A. Blumenreich, JD, AANA General Counsel
Statutes of limitations require that lawsuits be brought within certain periods of time. They should provide a reasonable time to bring suit, but not so much time as to permit inattention. While time periods differ from state to state, a 3-year period for negligence actions is found in many states and would apply to the bulk of actions that might be brought against nurse anesthetists.
 
 
October 1994
Supervision
Gene A. Blumenreich, JD, AANA General Counsel
Lawyers have looked for ways to win malpractice cases without having to go through the difficulty of presenting them. One way to avoid this is to present a case under the doctrine of res ipsa loquitur.
 
 
August 1994
When is a supervisor not a supervisor
Gene A. Blumenreich, JD, AANA General Counsel
In May 1994, the Supreme Court of the United States issued a decision concerning nurses which confronts common concerns about the law and its separation from what most people would accept as reality.
 
 
June 1994
Harris v Miller
Gene A. Blumenreich, JD, AANA General Counsel
The liability of a surgeon or other supervising physician for the negligence of a nurse anesthetist depends on the facts of the case, primarily whether the surgeon or other supervising physician controlled the act of the nurse anesthetist which gave rise to the negligence.
 
 
April 1994
The CRNA as employee
Gene A. Blumenreich, JD, AANA General Counsel
Reports of the case of Salih v Lane carried the not very surprising news that a CRNA was not the employee of a psychiatrist. But why would anyone have thought so in the first place.
 
 
February 1994
Mitchell v Amarillo Hospital District
Gene A. Blumenreich, JD, AANA General Counsel
In Mitchell v Amarillo Hospital District, the misunderstanding of the nature of nurse anesthesia is evident in the plaintiff's distorted claims that the hospital and its medical director deprived Mr. Mitchell of his civil rights during surgery for cardiac tamponade.
 
 
 
 
 
 
1993
 
 
December 1993
Baptist Medical Center Montclair v Wilson
Gene A. Blumenreich, JD, AANA General Counsel
A recent Alabama case raises some interesting issues about medical malpractice law and the relationship between the practice of nursing and the practice of medicine.
 
 
October 1993
Drug Enforcement Administration Mid-level Practitioner Regulation
Gene A. Blumenreich, JD, AANA General Counsel and Mitchell H. Tobin, JD, AANA Director of State Government Affairs
The U.S. federal Drug Enforcement Administration (DEA) published a final regulation regarding registration of so-called mid-level practitioners. The regulation requires an MLP who "dispenses" controlled substances to register with the DEA unless the MLP is exempt as an agent or employee of a DEA registrant, such as a hospital or physician. Find out how this affects CRNAs.
 
 
August 1993
Statute of limitations
Gene A. Blumenreich, JD, AANA General Counsel
The purpose of statute of limitations is to reduce the unfairness of defending actions after a substantial period of time has elapsed. While time periods differ from state to state, a 3-year period for negligence actions is found in many states.
 
 
June 1993
The law and the AIDS-infected healthcare worker
Gene A. Blumenreich, JD, AANA General Counsel
Do healthcare workers have an obligation to reveal to their patients that they are HIV-positive or infected with AIDS? Several cases are cited.
 
 
April 1993
Privileged communications
Gene A. Blumenreich, JD, AANA General Counsel
Certain "privileged communications," even if relevant to a case may not be permitted into testimony if there are good policy reasons for excluding them.
 
 
February 1993
Captain of the Ship
Gene A. Blumenreich, JD, AANA General Counsel
Because the Captain of the Ship doctrine has many disturbing connotations in the healthcare area, it is important to have an understanding of exactly what it refers to and, just as importantly, what it does not refer to.
 
 
 
 
1992
 
 
December 1992
The standard of care
Gene A. Blumenreich, JD, AANA General Counsel
Standard of care is closely related to the quality of care. Upholding the standard of care, however, is not as simple as some might believe. The author discusses several cases where "the locality rule" comes into play.
 
 
October 1992
Informed consent
Gene A. Blumenreich, JD, AANA General Counsel
Informed consent is a fundamental right of any surgical patient. However, even for so fundamental a right, there can remain questions of the application of that right in particular circumstances.
 
 
August 1992
Wrongful termination: Massachusetts takes a step backward
Gene A. Blumenreich, JD, AANA General Counsel
The Massachusetts Supreme Judicial Court took a step backward and held that a hospital could terminate a nurse's "at will" employment in reprisal for her critical remarks to a survey team. The nurse's action was not protected by the public policy exception to the "at will" doctrine.
 
 
June 1992
Punitive damages
Gene A. Blumenreich, JD, AANA General Counsel
It is unusual for punitive damages to be awarded against nurse anesthetists. However rare, it does happen. Several cases are discussed.
 
 
April 1992
New Jersey's hospital anesthesia standards
Mitchell H. Tobin, JD, AANA Director of State Government Affairs and Gene A. Blumenreich, JD, AANA General Counsel
The New Jersey anesthesia standards, which took effect on October 15, 1991, have become the object of a great deal of interest, particularly among anesthesiologists. There is, in fact, much in the standards that is commendable.
 
 
February 1992
Employment agreements
Gene A. Blumenreich, JD, AANA General Counsel
In several cases, the courts have said that there may be circumstances when the employer's termination of an "at will" employment contract is a wrongful discharge, and for which the courts will award damages or other relief.
 
 
 
 
 
 
1991
 
 
December 1991
Anesthesia and the surgeon's comfort
Gene A. Blumenreich, JD, AANA General Counsel
Some surgeons feel more comfortable working with an anesthesiologist than with a nurse anesthetist, believing they have less liability in such a case. Yet liability of a surgeon is based on control; mere supervision is not enough.
 
 
October 1991
Who does your lawyer represent?
Gene A. Blumenreich, JD, AANA General Counsel
Nurse anesthetists need to be aware of and be involved in their legal defense. Even knowledgeable healthcare defense attorneys may not be familiar with the capabilities of nurse anesthetists. Insurance companies may find themselves with multiple defendants, and nurse anesthetists must be vigilant that their interests are protected.
 
 
August 1991
The standard of care
Gene A. Blumenreich, JD, AANA General Counsel
What is the standard of care? Although anesthesia is recognized as a specialty, and anesthesia providers are required to meet a national standard of care rather than a local standard, there are some states where it is limited to the local standard of care.
 
 
April 1991
Medicare fraud and abuse
Gene A. Blumenreich, JD, AANA General Counsel
As a result of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), reimbursement of physicians for medically directing CRNAs became more complex and demanding.
 
 
February 1991
Pennsylvania Blue Shield agrees to reimburse nurse anesthetists
Gene A. Blumenreich, JD, AANA General Counsel
As a result of a lawsuit brought by four CRNAs, Pennsylvania Blue Shield has agreed to reimburse CRNAs who are independent contractors and are not supervised by an anesthesiologist.
 
 
 
1990
 
 
December 1990
Franklin v. Gutpa
Gene A. Blumenreich, JD, AANA General Counsel
A recent Maryland case involved a patient who was evaluated as being ASA Class III, although one expert witness estimated his condition as ASA Class IV. The patient had three brachial blocks administered, which did not work. The surgeon recommended general anesthesia, but the CRNA preferred to administer another block. Find out what happened while the CRNA was consulting with the anesthesiologist.
 
 
October 1990
Anesthesia Advantage Inc. vs. Metz
Gene A. Blumenreich, JD, AANA General Counsel
The 10th Circuit Court of Appeals recently reversed a decision which would have made it difficult for CRNAs to take advantage of the federal antitrust laws within the Sherman Antitrust Act. 
 
 
August 1990
Federal drug laws and CRNAs
Gene A. Blumenreich, JD, AANA General Counsel; Dianna R. Stallone, JD, Associate; and Mitchell H. Tobin, JD, AANA Director of State Government Affairs
There are two principal federal acts applicable to the administration of drugs of the types routinely administered CRNAs: the Food, Drug and Cosmetics Act, and the Controlled Substances Act.
 
 
June 1990
The administration of anesthesia and the practice of medicine
Gene A. Blumenreich, JD, AANA General Counsel
Is administering anesthesia by a nurse anesthetist the practice of medicine or the practice of nursing? While anesthesiologists view the administration of anesthesia as the practice of medicine, does that preclude any other profession, such as dentists or nurse anesthetists, from administering anesthesia? Answers to these and other questions can be found in this column.
 
 
April 1990
Herrington v Hiller: A nightmare for those who restrict CRNA practice
Gene A. Blumenreich, JD, AANA General Counsel
Restrictions on CRNA practice cannot be justified by quality of care. Hospitals adopting anti-CRNA restrictions are creating potential liability hazards where none would otherwise exist.
 
 
February 1990
Hospital privileges
Gene A. Blumenreich, JD, AANA General Counsel
While working at a hospital as an independent contractor, a nurse anesthetist or radiologist is still entitled to due process when termination arises.
 
 
 
 
1989
 
 
December 1989
What is an employee?
Gene A. Blumenreich, JD, AANA General Counsel
Just what is the legal definition of employee? It can have various meanings in different contexts, but nowhere are the variable meanings of employment more evident than in the field of healthcare.
 
 
October 1989
Nurse anesthetists and podiatrists
Gene A. Blumenreich, JD, AANA General Counsel
May nurses collaborate with podiatrists? This column explores the answers to this question and provides guidance to which circumstances nurse anesthetists may practice.
 
 
August 1989
Postscripts
Gene A. Blumenreich, JD, AANA General Counsel
The author provides further insight into some previously discussed cases.
 
 
June 1989
Wrongful termination
Gene A. Blumenreich, JD, AANA General Counsel
The doctrine Employment at Will is more than just an excuse to get rid of somebody or to leave a company. Both employers and employees must act in good faith and in the best interests of the patient and society.
 
 
April 1989
Surgeon's liability for negligence of CRNAs: A recent case
Gene A. Blumenreich, JD, AANA General Counsel
In a recent case, the Tennessee Court of Appeals issued a well-reasoned opinion holding that under the facts of the case, surgeons did not have liability for the negligence of nurse anesthetists.
 
 
February 1989
Surgeon's responsibility for CRNAs
Gene A. Blumenreich, JD, AANA General Counsel
CRNAs who are not supervised by anesthesiologists continue to seek assistance in assuring their hospitals, their surgeons or both that they are not required to be supervised by an anesthesiologist. 
 
 
 
 
 
1988
 
 
December 1988
CRNAs and the National Labor Relations Act
Gene A. Blumenreich, JD, AANA General Counsel
As the physician glut continues, many CRNAs are faced with combatting restrictions on their practice. Nurse anesthetists have been able to object successfully to the imposition of these restrictions, filed antitrust suits, and employed a third approach based on the National Labor Relations Act (NLRA).
 
 
October 1988
Antitrust protection against a hospital's denial of access
Gene A. Blumenreich, JD, AANA General Counsel
Several cases that deal with violating the Sherman Antitrust Act involve nurse anesthetists. Numerous healthcare practitioners have claimed that a hospital's refusal to permit them to practice was illegal under one or more provisions of the Sherman Act. This column examines the Sherman Act, these provisions and how antitrust law protection is vital to the nurse anesthetist practice.
 
 
August 1988
Professional corporations
Gene A. Blumenreich, JD, AANA General Counsel
There are multiple meanings of some terms and "professional" is a term that varies from context to context. Nowhere is this inconsistency as widely found as in the area of professional corporations.
 
 
June 1988
Physician-controlled insurance companies
Gene A. Blumenreich, JD, AANA General Counsel
This column has previously addressed issues relating to the impact of professional liability insurance on nurse anesthesia practice. Nonetheless, physician-controlled insurance companies continue to set restrictions on nurse anesthesia practice. 
 
 
April 1988
Nurse anesthetists and prescriptive authority
Gene A. Blumenreich, JD, AANA General Counsel
Part of the confusion over whether the practice of nurse anesthesia is the practice of medicine is whether nurse anesthetists "prescribe" anesthetic agents. 
 
 
February 1988
Practice standard in the making: Pulse oximeters
Gene A. Blumenreich, JD, AANA General Counsel
We appear to be witnessing an unusual event: the creation of a new practice standard in anesthesia. Because it so clearly illustrates a fundamental principle of the law covering healthcare, it is appropriate to examine this development.
 
 
 
 
 
1987
 
 
December 1987
Informed consent and anesthesia
Meryl J. Epstein, JD and Gene A. Blumenreich, JD, AANA General Counsel
The doctrine of informed consent requires the health care professional to disclose to his or her patient the risks of, and alternatives to, proposed medical treatment. The doctrine is founded on the principle that the patient, not the health care provider, has the right to decide which medical procedures shall be performed on his or her own body.
 
 
October 1987
Fraud and abuse-Should you be concerned?
Ronald Schwartz, JD, Washington Legal Counsel
You are all probably aware that the Internal Revenue Service has certain "pet" income tax areas to which it gives special scrutiny. But, did you know that you are practicing in a fraud and abuse "pet" area also?
 
 
August 1987
Standard of care
Gene A. Blumenreich, JD, AANA General Counsel
Because the courts do not understand what nurse anesthetists do, they designate nurse anesthesia as a profession. The profession sets its own standards of care, and when the courts are faced with questions as to what those standards are, the courts ask for experts to testify.
 
 
June 1987
The impact of professional liability insurance on nurse anesthesia practice
Gene A. Blumenreich, JD, AANA General Counsel
Courts have been reluctant to admit that liability insurance has had an impact on the law. Liability insurance is very seldom discussed, primarily because insurance is irrelevant to the major issues that are before the court: Was there a duty of care? Was there a breach of that duty of care? What are the damages?

April 1987

An examination of professional relationships between CRNAs and other healthcare professionals
Gene A. Blumenreich, JD, AANA General Counsel
Many different terms can and have been used to describe the working relationships between healthcare professionals. These terms have sometimes been undefined or ill-defined and have posed confusion to those seeking clear definition. This article and position statement realistically describe the settings in which practitioners carry out their respective disciplines.
 
  
February 1987
The doctrine of Res Ipsa Loquitur
Gene A. Blumenreich, JD, AANA General Counsel
Malpractice is a specific area of the law of "negligence." Under the law of negligence, if one party owes a duty of care to another and the duty is breached, causing harm to someone, the person who is harmed is entitled to recover damages.
 
 
  
 
1986
 
 
December 1986
Restrictions on CRNAs imposed by physician-controlled insurance companies
Gene A. Blumenreich, JD and Betsy L. Wolf, JD, AANA General Counsel
Recently, we have become aware of several cases of physician-controlled insurance companies attempting to restrict the practice of nurse anesthesia by adopting restrictive endorsements or raising premiums for physicians working with nurse anesthetists. These endorsements are based on a misleading and inaccurate picture of the liability of a surgeon when working with a CRNA. In addition, these endorsements often raise serious anti-trust issues.
 
 
October 1986
A surgeon's liability for the anesthesia administrator: The law according to Dr. Modell
Gene A. Blumenreich, JD, AANA General Counsel
An editorial, "Who is Captain of the Anesthesia Ship?" purported to describe legal aspects of a surgeon working with an anesthesiologist and a surgeon working with a CRNA. The conclusions stated by the author, Dr. Jerome H. Modell, MD, in the editorial run counter to the cases discussing these legal issues.
 
 
August 1986
Hospital regulations: Potential evidence of negligence
Betsy L. Wolf, JD, AANA General Counsel
In a recent "Legal Briefs" column, a Georgia Supreme Court decision about a violation of a statute governing the supervision of student nurse anesthetists administering anesthesia was discussed. The legal principle focused on in that article was negligence per se. By way of review, when a legislature establishes a minimum standard of conduct embodied in a statute intended to protect a certain class of persons from a foreseeable harm or injury, a violation of that statute consitutes negligence as a matter of law. Thus, negligence is not a matter to be decided by a jury, but rather is a legal conclusion derived solely from the violation.
 
 
June 1986
The duty to independently assess proper nursing functions
Betsy L. Wolf,  ESQ., AANA General Counsel
Nursing has always been a vital and integral part of providing health care services. Nurses are recognized as valuable team members in rendering such services. The team concept denotes a group of health care providers working together with their respective expertise. Each team member has an obligation to exercise professional judgment within his or her respective scope of practice. In connection with this obligation, courts have recognized a nurse-patient relationship in which the nurse has a duty to independently assess and evaluate the patient's condition and act in accordance with the standards of practice of the nursing profession.
 
 
April 1986
A look at the Georgia Worthy case
Betsy L. Wolf, JD, AANA Legal Counsel
On September 4, 1985, the Supreme Court of Georgia handed down a ruling on appeal from a series of four cases involving the same incident: Central Anesthesia Associates, P. C., et al. v. Worthy, et al.; and three other related cases, - - Ga. - -, 333 S.E.2d 829 (1985).*
The issues raised in this Georgia Supreme Court decision, both those which the Court answered and those which the Court left unanswered, are pertinent and interesting.
* At the time of this writing, the case did not yet have a complete Georgia citation.
 
 
 
 
 
 
1985
 
 
December 1985
Bhan v. NME Hospitals, Inc.: Antitrust standing of CRNAs sustained
Gene A. Blumenreich, JD and Jesse W. Markham, Jr., JD, AANA Legal Counsel
In a landmark decision for nurses in an expanded role, the United States Circuit Court of Appeals for the Ninth Circuit recently held that a CRNA dismissed from employment as the result of an agreement among MD anesthesiologists and the employer hospital has the right to sue under federal antitrust laws. (Bhan v. NME Hospitals, Inc., 84-2256, D.C. No. CV-S-83-295 LKK, (October 2, 1985.))
 
 
October 1985
The irrelevant issue of surgeon's liability
Gene A. Blumenreich, JD, AANA Legal Counsel
Anti-CRNA activity this year seems to be concentrating on the so-called vicarious liability of surgeons working with CRNAs.
 
 
August 1985
Malpractice: The gathering storm-Part II
Robert F. Sylvia, JD, AANA Legal Counsel
In his last article, Mr. Sylvia discussed areas of practice that give rise to malpractice claims. It is apparent that fully innocent nurse anesthetists can be defendants in a malpractice case. In this article, he discusses what happens when a nurse anesthetist becomes a defendant in a malpractice case.
 
 
June 1985
Malpractice: The gathering storm
Robert F. Sylvia, JD, AANA Legal Counsel
On October 16, 1846, a dramatic event occurred at Massachusetts General Hospital in Boston, Massachusetts, which would thereafter significantly affect the future of medicine throughout the world. At the urging of a Boston dentist, William Morton, the renowned surgeon, John Collins Warren, performed surgery on an anesthetized patient for the first time in history. 
 
  
April 1985
State Regulation of Health Care Professions
Gene A. Blumenreich, JD, AANA Legal Counsel
State regulation of health care differs significantly from state regulation of other industries, such as banking. If one were to analyze whether two highly regulated commercial services compete, such as banking and securities brokerage, one might begin with an analysis of the statutory authority. Banking legislation tends to clearly and specifically set forth powers, duties and procedures. However, in medical and nursing regulation, there is a large degree of deference to the health care community by both legislatures and courts.
 
 
February 1985
Is the administration of anesthesia the practice of medicine?
Gene A. Blumenreich, JD, AANA Legal Counsel
In the Amicus Curiae brief filed in the Hyde case, the AANA pointed out several cases (Frank v. South, the Dagmar Nelson case and State v. Borah) as standing for the proposition that the practice of nurse anesthesia is not the practice of medicine. Many people are confused about what nurse anesthetists do, and I am sure that CRNAs are often thought to be practicing medicine. Nurse anesthetists, however, are practicing nursing, not medicine. They are engaged in what has been a recognized nursing function for more than 90 years.
 
 
 
 
 
1984
 
 
December 1984
Elementary legal considerations
Gene A. Blumenreich, JD and Betsy L. Wolf, JD, AANA Legal Counsel
This article focuses on the various sources of law, how law comes to exist, the distinction between criminal and civil law, the enforcement of law, and the role which "facts" and "law" play in deciding legal cases.
 
 
October 1984
Legal requirements of physician supervision
Gene A. Blumenreich, Esq., AANA Legal Counsel
In many states, the practice of nurse anesthesia is authorized by statutes which require "supervision" or "direction" a physician. There are very few decided cases in which the issue has been discussed, but in those cases, the courts have shown that the healthcare community will be given considerable latitude to determine what is appropriate supervision.
 
 
August 1984
Jefferson Parish Hospital v. Hyde-The last chapter
Gene A. Blumenreich, JD, AANA Legal Counsel
Not since Chalmers-Francis v. Nelson has a case received as much attention from nurse anesthetists as the Hyde case in which the AANA filed an amicus curiae brief. On March 26, 1984, the Supreme Court of the United States issued its decision upholding the legality of an exclusive contract between a hospital and a group of anesthesiologists. 
 
June 1984
Liability of a surgeon when working with a nurse anesthetist
Gene A. Blumenreich, JD and Deborah Benkov, JD, AANA Legal Counsel
When can a surgeon be held liable for a nurse anesthetist's actions? Gene A. Blumenreich, JD, and Deborah Benkov, JD, explore past legal cases in relation to this potential liability.
 
 
April 1984
State Regulation of Health Care Professions
Gene A. Blumenreich, JD
State regulation of health care differs significantly from state regulation of other industries, such as banking. If one were to analyze whether two highly regulated commercial services compete, such as banking and securities brokerage, one might begin with an analysis of the statutory authority. Banking legislation tends to clearly and specifically set forth powers, duties and procedures. However, in medical and nursing regulation, there is a large degree of deference to the health care community by both legislatures and courts.
 
 
February 1984
The evolving right of at will employees to contest wrongful discharge
Roderick MacLeish, JR., JD, AANA Legal Counsel
Approximately 60% of the work force in the United States is comprised of employees who are not protected by state or federal civil service codes or collective bargaining agreements. Both collective bargaining agreements and civil service statutes usually provide for termination of the employee only for "cause." If the union member or government worker believes that he/she has been discharged for reasons that are unjustified, he would typically have the right to file a grievance before an arbitration or civil service review board which would have the final ruling.
 
 

 
 

 Let the Record Show

 

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A collection of the best of Gene Blumenreich's Legal Briefs columns is available in the AANA Bookstore.