NC MEDICAL SOC. v. NC Bd. of Nursing
| Decision Date | 15 March 2005 |
| Docket Number | No. COA04-682.,COA04-682. |
| Citation | 610 S.E.2d 722,169 NC App. 1 |
| Court | North Carolina Court of Appeals |
| Parties | NORTH CAROLINA MEDICAL SOCIETY, North Carolina Society of Anesthesiologists, Inc., Eric W. Mason, M.D., and the North Carolina Medical Board f/k/a the Board of Medical Examiners of the State of North Carolina, Petitioners v. NORTH CAROLINA BOARD OF NURSING, Respondent. |
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Susan H. Hargrove, Dana E. Simpson, and Candice M. Murphy-Farmer, Raleigh, for petitioners North Carolina Medical Society, North Carolina Society of Anesthesiologists, Inc., and Eric W. Mason, M.D.
Marcus Jimison and Thomas W. Mansfield, Raleigh, for petitioner North Carolina Medical Board f/k/a the Board of Medical Examiners of the State of North Carolina.
Howard A. Kramer; Womble Carlyle Sandridge & Rice, P.L.L.C., by Johnny M. Loper, Leighton P. Roper, III, and John W. O'Tuel, III, Raleigh, for respondent.
North Carolina Board of Nursing (BON) (respondent) appeals an order filed 31 December 2003, denying respondent's motion for enforcement of a consent order as against North Carolina Medical Society (Medical Society), North Carolina Society of Anesthesiologists, Inc. (NCSA), Eric W. Mason, M.D., and the North Carolina Medical Board f/k/a the Board of Medical Examiners of the State of North Carolina (Medical Board), (petitioners).
On 6 August 2003, BON filed a motion for enforcement of consent order seeking, primarily, an order from the trial court directing the Medical Board to remove language from a Medical Board position statement that stated that anesthesia administered in an office-based surgical setting should either be administered by an anesthesiologist, or by a certified registered nurse anesthetist (CRNA) under the supervision of a physician. BON contends the Medical Board's position statement constituted a violation of the 1994 consent order between the parties. Contemporaneous with the filing of its motion, BON served upon the Medical Board certain requests for discovery.
On 6 October 2003, petitioners filed a motion for protective order seeking an order that "discovery not be had with respect to the motion to enforce the consent order." The motion to enforce the consent order was calendared for hearing on 27 October 2003 in Wake County Superior Court.
Prior to the hearing date, counsel for the Medical Society requested a continuance. Counsel for BON wrote the trial court administrator for Wake County stating that, in his opinion, "good cause" did not exist for moving the hearing date and that BON needed the "requested discovery in order to appropriately argue the motion."
The matter came for hearing at the 27 October 2003 civil session of Wake County Superior Court with the Honorable Evelyn W. Hill presiding. At the hearing, counsel for BON did not make a motion to compel responses to his discovery requests, nor did he seek a continuance of the hearing so that BON could have discovery before proceeding with the hearing. After oral argument, the trial court took the matter under advisement and requested that the parties submit post-hearing briefs and/or any other materials or documents that they wished to have the court consider. The trial court stated it would advise counsel by 1 December 2003 if the trial court would require additional presentation or argument prior to rendering a decision.
Both parties provided the trial court with supplemental briefs on or about 17 November 2003. On 25 November 2003, petitioners provided the trial court with an exhibit to their 17 November 2003 brief in the form of a consent order between the Medical Board and Peter Loren Tucker, M.D., which had been entered into on 20 November 2003. On 30 December 2003, the trial court entered an order denying BON's motion to enforce the 1994 consent order.
Respondent gave timely notice of appeal.
In 1992, BON proposed an administrative rule, 21 N.C.A.C. 36.0226 , that would expand the scope of practice of a CRNA. The proposed rule sought to change the relationship between a CRNA and a physician from a relationship where the physician supervised the CRNA, to a relationship in which the CRNA worked in collaboration with a physician. During the rulemaking process and prior to final adoption of the proposed rule, NCSA, requested that BON adopt a similar, but different rule.
NCSA proposed that BON include the statutory language of N.C. Gen.Stat. § 90-171.20(7)(e)1 and (f)2, requiring the supervision of a licensed physician when a nurse performed acts that required the making of a medical diagnosis or the implementation of a treatment or pharmaceutical regimen. BON rejected NCSA's request.
On 19 November 1993, the Medical Board issued a series of declaratory rulings declaring that many of the activities described in proposed rule .0226 constituted the practice of medicine (i.e., the making of a medical diagnosis and/or implementation of a treatment or pharmaceutical regimen). Despite the objections, declaratory rulings, and requests that a different rule be adopted, BON adopted rule .0226 with an effective date of 1 July 1993.
Petitioners requested judicial review of rule .0226 in August 1993 and February 1994. In their August 1993 petition for judicial review, petitioners wrote the following:
In such petition [Petition for Adoption of Rules], the Board of Nursing was requested to adopt rules substantially similar to the rules that were being considered by the Board of Nursing (and which have since been adopted), but with brief yet vital revisions limited to bringing the rules within the scope of the Board of Nursing's statutory authority and the General Assembly's statement of the bounds of the scope of the practice of nursing by a registered nurse. The requested changes merely include the statutory language relating to supervision by a licensed physician and implementing medical treatment regimens only as prescribed by a person so authorized under State law.
(emphasis added).
In March 1994, the Medical Board moved to intervene in the judicial review actions. On 21 September 1994, the parties executed a consent order resolving the petitions for judicial review. In resolving the dispute between the parties, the consent order provided, in pertinent part, as follows:
The consent order called for an amendment to rule .0226. The pre-amendment rule .0226, in pertinent part, reads as follows:
The amendment to rule .0226 (as a consequence of the parties' settlement) retained all the language of the pre-amendment rule, but added the following:
(emphasis added)3. The effect of the amendment was to add the statutorily required physician supervision language to the rule, while also leaving intact the collaboration language.
After execution of the 1994 consent order, the parties interpreted the consent order to mean different things. BON interpreted the consent order to mean acceptance by the Medical Board and the other petitioners that the activities described in rule .0226 do not involve the practice of medicine, and therefore, do not require physician supervision. The Medical Board and the other petitioners, however, interpreted the consent order as preserving the physician supervision requirement for those activities described in rule .0226 that involve the practice of medicine.
Subsequent to 1994, there has been no judicial determination or legislative clarification as to whether any of the described activities in rule .0226 constitute the practice of medicine, and thus require physician supervision. In December 1998, the North Carolina Attorney General (Attorney General) issued an advisory opinion on the following issue: "whether it is lawful for certified registered nurse anesthetists ("CRNAs") to provide anesthesia care without physician supervision[?]" The Attorney General responded that: ...
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