Spine Diagnostics Ctr. of Baton Rouge, Inc. v. Louisiana State Bd. of Nursing (Full Text)
STATE OF LOUISIANA
COURT OF APPEAL
FIRST QRCUIT
NO 2008 CA 0813
SPINE DIAGNOSTICS CENTER OF BATON ROUGE INC
VERSUS
LOUISIANA STATE BOARD OF NURSING THROUGH LOUISIANA
DEPARTMENT OF HEALTH AND HOSPITALS AND AUGUST J RANTZ III
Judgment rendered December 23 2008
Appealed from the
19th Judicial District Court
in and for the Parish of East Baton Rouge Louisiana
Trial Court No 536 009
Honorable Janice Clark Judge
JOHN P WOLFE III
CHAD A SULUVAN
TIFFANY N THORNTON
MICHAEL M THOMPSON
REBECCA H KLAR
BATON ROUGE LA
NICHOLAS GACHASSIN III
LAFAYETTE LA
CHRISTOPHER L WHITTINGTON
BATON ROUGE LA
E WADE SHOWS
JEFFREY K CODY
BATON ROUGE LA
SHERI M MORRIS
LARRY M ROEDEL
BATON ROUGE LA
EDWARD J WALTERS JR
BATON ROUGE LA
MICHAEL A PATTERSON
BATON ROUGE LA
ATTORNEYS FOR
PLAINTIFFS APPELLEES
SPINE DIAGNOSTICS CENTER OF
BATON ROUGE INC AND THE
AMERICAN SOCIETY OF
INTERNATIONAL PAIN PHYSIOANS
ATTORNEY FOR
DEFENDANT APPELLEE
AUGUSTJ RAN1Z 1II
ATTORNEY FOR
INTERVENOR APPELLEE
LOUISIANA SOOETY OF
ANESTHESIOLOGISTS
ATTORNEYS FOR
DEFENDANT 2ND APPELLANT
LOUISIANA STATE BOARD OF
NURSING
ATTORNEYS FOR
INTERVENOR 1ST APPELLANT
LOUISIANA ASSOCIATION OF NURSE
ANESTHETISTS
DOMINIC J GIANNA
NEW ORLEANS LA
STEPHEN M PIZZO
GUICE A GIAMBRONE III
KELLY A DUGAS
METAIRIE LA
RODNEY C BRAXTON
BATON ROUGE LA
AUCE L BODLEY
SILVER SPRING MD
CLARK R COSSE III
BATON ROUGE LA
THOMAS G ABRAM
CHICAGO IL
ATTORNEY FOR
AMERICAN ASSOCIATION OF
NURSE ANESTHETISTS
AM WSWRlAE
ATTORNEYS FOR
LOUISIANA ASSOOATION OF
NURSE PRACTlTIONERS
AM WS WRlAE
ATTORNEYS FOR
AMERICAN NURSES ASSOOATION
LOUISIANA STATE NURSES
ASSOOATION AND LOUISIANA
AWANCE OF NURSING
ORGANIZATIONS AM aWRlAE
ATTORNEY FOR
LOUISIANA HOSPITAL ASSOOATION
AM WS WRlAE
ATTORNEY FOR
NATIONAL COUNOL OF STATE
BOARDS OF NURSING INC
AM WS WRlAE
BEFORE PETTIGREW McDONALD AND HUGHES JJ
2
PETTIGREW J
In the instant case appellants challenge the trial court s judgment granting
injunctive relief in favor of plaintiffs
Following this court s review of the record and
relevant law we affirm in part and reverse in part
FACTS AND PROCEDURAL HISTORY
On March 24 2005 August J Rantz III a certified registered nurse anesthetist
CRNA
submitted a petition for an advisory opinion to the Louisiana State Board of
Nursing
the LSBN
which requested a response to the following query
is within the scope of practice for a CRNA to perform
Whether
it
procedures involving the injection of
steroids and
local anesthetics
analgesics for pain management purposes including but not limited to
peripheral nerve blocks epidural injections 62310
and spinal facet joint
injections 64470
64472 when the CRNA can document education
training and experience in performing such procedures
After
considering Rantz s petition
the LSBN s practice committee submitted a
recommendation to the LSBN that
it was within the scope of practice for CRNAs to
perform such procedures under the direction and supervision of a physician
Prior to the LSBN s consideration of the practice committee s recommendation
Spine Diagnostics Center of Baton Rouge Inc
Spine Diagnostics
filed a Petition For
Injunctive Relief And For Declaratory Judgment
seeking to enjoin the LSBN from
adopting the committee s
recommendation
to prevent Rantz
from practicing
interventional pain management and to prevent Rantz from performing anesthesia
related management unless by physician order and under the direct and immediate
supervision of a physician Additionally Spine Diagnostics prayed that the trial court
issue a declaratory judgment finding that the practice of pain management constitutes
the
practice of medicine l At
its December 7 2005 board meeting the LSBN
amended the recommendation of the practice committee and adopted the following
statement
That it is within the scope of practice for the CRNA to perform procedures
under the direction and supervision of the physician involving the injection
1 The Louisiana Society of Anesthesiologists has intervened in the litigation praying for the same relief
sought by Spine Diagnostics
3
steroids and analgesics for pain management
of
local anesthetics
purposes peripheral nerve blocks epidural
injections and spinal
facet
injections when the CRNA can document education training and
joint
experience in performing such procedures and has the knowledge skills
and abilities to safely perform the procedures based on an order from the
physician
The statement was subsequently published on the LSBN s web site as well as in its
quarterly publication The Examiner
Following the LSBN s adoption of the above statement Spine Diagnostics filed a
first supplemental and amending petition contending the LSBN was attempting to
promulgate a rule within the meaning of the Louisiana Administrative Procedure Act
LAPA
that has not been properly adopted and promulgated and should be declared
invalid 12 Thereafter at Spine Diagnostics request
the Louisiana State Board of
Medical Examiners
the LSBME
issued an Advisory Opinion regarding interventional
pain management by CRNAs
In its opinion the LSBME indicated that CRNAs could
provide anesthetics for acute pain associated with surgery but opined that
the
procedures at
issue for interventional pain management purposes constituted the
practice of medicine that could only be performed by a physician 3
After a two day hearing on Spine Diagnostics request for injunctive relief
the
trial court
took the matter under advisement
The court subsequently rendered
judgment denying the request for injunctive relief but noted that the request
for
declaratory judgment would proceed via ordinaria in accordance with the case
management order Thereafter Spine Diagnostics filed a writ application with this court
seeking review of that judgment We granted certiorari
for the limited purpose of
reviewing the judgment denying Spine Diagnostics request for injunctive relief
insofar
2 We note it was not necessary that Spine Diagnostics exhaust all administrative remedies prior to seeking
injunctive relief in connection with its action for declaratory judgment See La R S 49 963 E
3 In the opinion the LSBME noted in pertinent part as follows
the injection of local anesthetics steroids and analgesics peripheral nerve blocks epidural
injections and spinal facet joint injections when used for interventional pain management
constitute the practice of medicine are not
of patients suffering from chronic pain
delegable by a physidan to a non physidan by physidan prescription
direction or
supervision and may only be perfonmed in this state by a physician licensed to practice
medicine in Louisiana
4
as that request alleged the LSBN had promulgated a rule within the intendment of the
LAPA without following the procedural requirements therein
In an unpublished decision rendered on December 28 2006 this court reversed
the trial court s judgment and issued a preliminary injunction in favor of Spine
Diagnostics Spine Diagnostics Center of Baton Rouge Inc Y Louisiana State
Bel of Nursing ex rei Louisiana Dept of Health and Hospitals 2006 0554 La
App 1 Cir 12 28 06
unpublished opinion writs denied 2007 0183 2007 0217 La
3 16 07
952 So 2d 702 703 Spine Diagnostics I
In so doing we noted in
pertinent part as follows
Thus Spine Diagnostics has made a prima facie showing that the LSBN
statement substantively expands the scope of practice for CRNAs into an
traditionally practiced
area where they have not
chronic or
i e
interventional pain management Such a substantive expansion of the
scope of practice clearly constitutes a rule within the meaning of La R S
Further although the LSBN contends the statement is limited
49 951 6
language of the statement approved by the LSBN
in scope the actual
limit its application to Rantz alone and is capable of being
does not
applied to every CRNA who has the requisite knowledge
skills and
CRNAs are able to freely
abilities to perform the procedures at issue
access the statement insofar as it was published in The Examiner and on
the LSBN s website
Given these circumstances we find Spine Diagnostics has made a
prima facie showing that the statement adopted by the LSBN insofar as it
relates to chronic or interventional pain management is a rule within the
meaning of the LAPA Since it is undisputed that the requirements of the
LAPA were not met Spine Diagnostics is entitled to a preliminary
injunction enjoining enforcement of the statement adopted by the LSBN at
its December 7 2005 board meeting and enjoining Rantz from practicing
chronic or interventional pain management procedures pursuant to the
authority of that statement
On June 29 2007 Spine Diagnostics filed a second supplemental and amending
petition adding Raymond R Smith Jr
a CRNA who had admitted to performing
interventional pain management procedures in violation of the Medical Practice Act
the
Nurse Practice Act and other general and equitable laws 4 Spine Diagnostics also
alleged that the LSBN attempted to circumvent this court s December 28 2006 ruling by
4 Spine Diagnostics subsequently moved to voluntarily dismiss Mr Smith from this action without prejudice
Judgment granting said dismissal was signed by the trial court on October 25 2007
5
urging House Bill 684 and Senate Bill 322 5 On July 9 2007 the Louisiana Association
of Nurse Anesthetists
LANA
sought to intervene in this matter as of right
On
October 15 2007 LANA was permitted to intervene in the proceedings
The trial on Spine Diagnostics request for declaratory judgment permanent
injunction and contempt was held on November 29 and 30 2007 and December 3
2007 Thereafter the trial court took the matter under advisement and on January 10
2008 rendered judgment in favor of Spine Diagnostics as follows 6
2
The Court ORDERS ADJUDGES and DECREES the following in
connection with the declaratory judgment
The statement issued by the LSBN substantively expands the scope
1
of practice for CRNAs into an area where they have not traditionally
practiced ie chronic or interventional pain management
interventional pain management
The practice of
is not within a
CRNAs scope of practice
The practice of
interventional pain management
practice of medicine
The opinion issued by the LSBN is an effort to substantively expand
CRNA scope of practice and is an improper attempt at rule making
is solely the
4
3
2
in
IT IS FURTHER ORDERED ADJUDGED and DECREED that
connection with the permanent injunction
injunction issue prohibiting the LSBN from enforcing
A permanent
1
the statement
injunction issue prohibiting August Rantz
III from
A permanent
performing chronic interventional pain procedures in connection
with the LSBN statement
The LSBN shall remove the advisory opinion from its website
The LSBN shall post the judgment of this Court on its website and
publish it in the LSBN publication The Examiner
3
4
IT IS FURTHER ORDERED ADJUDGED and DECREED that
LSBN is taxed with all costs associated with these proceedings
LSBN is taxed with all expert costs and fees
7 500 00 in litigation costs pursuant to LA R S
LSBN is taxed
49 965 1 A
LSBN is taxed with costs of all deposition transcripts
1
2
3
4
5 According to the record Senate Bill 322 was proposed as an attempt to amend La R S 37 930 A3
relative to the practice of nursing to provide that it is within the scope of practice of a CRNA to perfonm
certain pain management procedures including peripheral nerve blocks epidural injections and spinal facet
injections when the CRNA can document education training and experience in perfonming such
joint
procedures
6 On January 17 2008 the trial court signed an amended judgment which was identical in substance to the
judgment rendered on January 10 2008 According to the record the amended judgment was necessary
only to correct a clerical error because the original judgment indicated it had been signed on January 10
2007 when in fact the judgment had been rendered on January 10 2008
6
It is from this judgment that the LSBN and LANA have appealed
In its appeal
the LSBN assigns the following specification of errors
1 The Trial Court erred in ruling that Spine Diagnostics met its burden of
injunction enjoining the Nursing Board s
proof to obtain a permanent
Advisory Opinion on the basis that
it constituted a rule which should
have been promulgated in accordance with the LAPA
2 The Trial Court erred in ruling that Spine Diagnostics had met
its
injunction enjoining the Nursing
burden of proof to obtain a permanent
it substantively expands the
Board s Advisory Opinion on the basis that
scope of practice for CRNAs into an area where CRNAs have not
traditionally practiced ie chronic or interventional pain management
3 The Trial Court erred in ruling that Spine Diagnostics had met
its
burden of proof to obtain a mandatory injunction requiring the removal of
the Advisory Opinion from its website and ordering publication of the
judgment on the Nursing Board s website and in its quarterly publication
The Examiner
4 The Trial Court erred in declaring the practice of
injecting local
anesthetics steroids and analgesics for chronic pain management under
the direction and supervision of a physician to be beyond the traditional
scope of practice for CRNAs
5 The Trial Court erred in declaring the practice of
injecting local
anesthetics steroids and analgesics for chronic pain management under
the direction and supervision of a physician to be solely the practice of
medicine
6 The Trial Court erred in awarding Spine Diagnostics up to 7 500 in
reasonable litigation expenses pursuant to La R S 49 965 1 and other
fees costs for its expert witnesses and the taking of depositions
Similarly LANA sets forth the following on appeal for our review
1 The trial court committed legal error in declaring the practice of
steroids and analgesics for chronic pain
injecting local anesthetics
management pursuant to a physician s order beyond the scope of CRNA
practice
2 The trial court committed legal error in declaring the practice of
steroids and analgesics for chronic pain
injecting local anesthetics
management pursuant to a physician s order to be solely the practice of
medicine
3 The trial court erred in finding the Nursing Board s advisory opinion is
an improper attempt at rule making
7 Both the LSBN and LANA originally sought to suspensively appeal the trial courts judgment However the
trial court denied the requests for suspensive appeals and instead granted both parties devolutive appeals
Amici Curiae briefs on behalf of the American Association of Nurse Anesthetists the Louisiana Association of
Nurse Practitioners the American Nurses Association the Louisiana Alliance of Nursing Organizations the
Louisiana Hospital Association and the National Council of State Boards of Nursing Inc have also been filed
for this court s review
7
4 The trial court erred in finding that the Nursing Board advisory opinion
substantively expands the scope of practice for CRNAs into an area where
CRNAs have not traditionally practiced ie chronic or interventional pain
management
LAW OF THE CASE DOCTRINE
On appeal
the LSBN and LANA both argue that the advisory opinion issued by
the LSBN in response to Rantz s petition was nothing more than a declaratory order
which is provided for in La R S 49 962 not a rule within the meaning of the LAPA 8
Thus they assert
the trial court erred in finding that the LSBN s adviSOry opinion was
an improper attempt at rule making
In response Spine Diagnostics contends that the
LSBN and LANA are attempting to relitigate issues previously decided by this court
Spine Diagnostics maintains that these arguments are pretermitted by the law of the
case doctrine as they have been briefed argued and decided by this court
Pursuant to the law of the case doctrine an appellate court generally will not as
part of a subsequent appeal
reconsider its earlier ruling in the same case Spruell v
Dudley 2006 0015 p 4 La App 1 Cir 12 28 06
951 So 2d 339 342 writ denied
2007 0196 La 3 23 07
951 So 2d 1106
In Louisiana Land and Exploration Company v Verdin 95 2579 pp 34
La App 1 Cir 9 27 96
681 So 2d 63 65 writ denied 96 2629 La 12 13 96
692
So 2d 1067 cert denied 520 U S 1212 117 S Ct 1696 137 L Ed 2d 822 1997
this
court discussed the law of the case doctrine and its application as follows
The law of the case principle is a discretionary guide which relates
to a the binding force of a trial judge s ruling during the later stages of
b the conclusive effects of appellate rulings at trial on remand and
trial
c the rule that an appellate court ordinarily will not reconsider its own
in the same case It applies to all
rulings of law on a subsequent appeal
prior rulings or decisions of an appellate court or the supreme court in the
same case not merely those arising from the full appeal process
Re
argument in the same case of a previously decided point will be barred
where there is simply a doubt as to the correctness of the earlier ruling
However the law of the case principle is not applied in cases of palpable
8 Louisiana Revised Statutes 49 962 provides as follows
Each agency shall provide by rule for the filing and prompt disposition of petitions
for declaratory orders and rulings as to the applicability of any statutory provision or of any
rule or order of the agency Declaratory orders and rulings shall have the same status as
agency decisions or orders in adjudicated cases
8
error or where if the law of the case were applied manifest
would occur
injustice
The reasons for the law of the case doctrine is to avoid relitigation
of the same issue to promote consistency of result in the same litigation
and to promote efficiency and faimess to both parties by affording a single
opportunity for the argument and decision of the matter at issue
When an appellate court considers arguments made in supervisory
writ applications or responses to such applications the court s disposition
on the issue considered usually becomes the law of the case foreclosing
issue either at the trial court on remand or in the
relitigation of that
appellate court on a later appeal However where a prior disposition is
clearly erroneous and will create a grave injustice
it should be
reconsidered
Citations omitted
In considering this doctrine and its applicability herein we note that the
arguments and issues raised by the LSBN and LANA in this regard appear to be
indistinguishable from those presented to the trial court
in the original request for
injunctive relief and again to this court in the writ application in Spine Diagnostics I
In fact a review of our opinion in Spine Diagnostics I reveals this court previously
considered the LSBN s authority to issue declaratory orders and advisory opinions
pursuant
to La R S 49 962 thoroughly reviewed arguments conceming La R S
37 930 as it relates to this issue and concluded that the LSBN s statement
insofar as it
relates to chronic or
interventional pain management was a rule that
required
compliance with the procedural requirements of the LAPA Although ably argued on
appeal a review of the instant record reveals that this court s previous ruling was
without error Thus by operation of the law of the case doctrine we decline review of
these issues on appeal
SCOPE OF PRACTICE ISSUE
The central
issue to be decided in this appeal
is whether procedures involving the
injection of local anesthetics steroids and analgesics for pain management purposes
peripheral nerve blocks epidural
injections and spinal facet joint injections are within the
scope of practice of CRNAs or whether these procedures are considered the practice of
medicine and can only be performed by a physician licensed to practice medicine in
Louisiana The issue before us is res nova
9
The statutory provisions governing practice by a CRNA are found in La R S
37 390
Louisiana Revised Statutes 37 930 A provides that CRNAs are authorized to
administer local anesthetics under the direction and supervision of a physician 9
In 2004
the Louisiana Legislature statutorily recognized the importance of CRNAs in providing
anesthetics to Louisiana residents when it added paragraph G to La R S 37 930 This
provision provides in pertinent part as follows
G 1 The Louisiana Legislature hereby finds that
a Certified Registered Nurse Anesthetists CRNAs
have been
selecting and administering anesthesia in Louisiana and the United States
for over one hundred years
e Nurse anesthetists receive rigorous clinical and academic training
requiring a bachelor s degree from an accredited school of nursing and one
year of professional nursing experience in an acute care setting prior to
being considered for entrance to an accredited twenty four to thirty six
month nurse anesthesia educational program
f CRNAs administer the majority of anesthetics in Louisiana and all
of the anesthetics in many parts of the state
g Multiple studies have demonstrated that CRNAs are safe
accessible and cost effective providers of anesthetics
h CRNAs are critical providers of quality anesthesia services in the
health care delivery system in this state
i An adequate supply of CRNAs in Louisiana is vital to continued
access to safe cost effective health care for the citizens of Louisiana
9 Louisiana Revised Statutes 37 930 A provides as follows
A No registered professional nurse shall administer any fonn of anesthetic to any
person under their care unless the following conditions are met
1 The registered nurse has successfully completed the prescribed educational
program in a school of anesthesia which is accredited by a nationally recognized accrediting
agency approved by the United States Department of Health Education and Welfare
2 Is a registered nurse anesthetist certified by a nationally recognized certifying
agency for nurse anesthetists follOWing completion of the educational program referred to in
Paragraph 1 of this Subsection and participates in a continuing education program of a
nationally approved accreditation agency as from time to time required which program shall
be recognized as the Continuing Education Program for Certified Registered Nurse
Anesthetists and
3 Administers anesthetics and andllary services under the direction and
supervision of a physician or dentist who is licensed to practice under the laws of the state
Emphasis added
of Louisiana
10
n CRNAs are trained and legally authorized to administer all types
of anesthetics in all settings while AAs Anesthesiologist assistants are
limited by the type of anesthetics they can administer and the settings in
which they are authorized to perform their services
On appeal
the LSBN and LANA argue that Spine Diagnostics failed to prove by a
preponderance of the evidence that the LSBN s statement expands the scope of practice
for CRNAs into areas where CRNAs have not traditionally practiced Noting an overlap
between various practitioners including nurses and the practice of medicine the LSBN
and LANA contend that interventional pain management is not solely the practice of
medicine Moreover
they maintain that had the legislature intended to exclude CRNAs
from performing interventional pain management procedures language concerning the
restriction could have simply been added to La R S 37 930 to accomplish same
To the contrary Spine Diagnostics asserts that
the evidence presented at the
trial on the merits supports the trial court s ruling that the LSBN s statement expands
the scope of practice for CRNAs into an area not
traditionally practiced
Spine
Diagnostics argues that
1 CRNAs do not have an established history of performing
interventional pain management procedures
2 CRNAs do not have the education
training or accreditation to safely and effectively perform these procedures
3 studies
demonstrate decreased safety competency and efficacy when these procedures are
performed by CRNAs
4 CRNAs have no regulatory mechanism or process to assess
their competency training or education
5 no verifiable need exists for CRNAs in this
area of practice and 6 CRNA practice in this area will negatively impact public health
and safety
As previously mentioned this matter was tried over three days before the trial
court After hearing from the witnesses and considering the documentary evidence
presented by the parties the trial court entered a declaratory judgment finding that the
statement issued by the LSBN expanded the scope of practice for CRNAs into an area
where they have not
traditionally practiced
i e
chronic or
interventional pain
management
The trial court
further declared that
the practice of chronic or
11
interventional pain management
is not within the scope of practice of a CRNA but
rather is solely the practice of medicine
Appellate courts review a trial court s decision to grant or deny a declaratory
judgment using the abuse of discretion standard Mai v Floyd 2005 2301 p 4 La
App 1 Cir 12 6 06
951 Sc 2d 244 245
Factual findings made by the trial court are
reviewed using the manifest error or clearly wrong standard Rosell v ESCO 549
So 2d 840 844 La 1989
The trial court also issued a permanent
injunction prohibiting the LSBN from
enforcing its statement and prohibiting Mr Rantz from performing chronic interventional
pain procedures in connection with the LSBN statement and a mandatory injunction
ordering the LSBN to remove the statement from its website post the judgment of the
trial court on its website and publish the judgment in its publication The Examiner
The issuance of a permanent
injunction takes place only after a trial on the
merits in which the burden of proof must be founded on a preponderance of the
evidence State Machinery II Equipment Sales Inc v Iberville Parish Council
2005 2240 p 4 La App 1 Cir 12 28 06
952 SO 2d 77 81 A mandatory injunction
so named because it commands the doing of some action similarly cannot be issued
without a hearing on the merits The jurisprudence has established that a mandatory
preliminary injunction has the same basic effect as a permanent
injunction and
therefore may not be issued on merely a prima facie showing that the party seeking the
injunction can prove the necessary elements instead the party must show by a
preponderance of the evidence at an evidentiary hearing that he is entitled to the
preliminary injunction Concerned Citizens for Proper Planning LLC v Parish of
Tangipahoa 2004 0270 p
7 La App 1 Cir 3 24 05
906 Sc 2d 660 664
The
standard of review for the issuance of a permanent
injunction is the manifest error
standard Cathcart v Magruder 2006 0986 p
18 La App 1 Cir 5 4 07
960
Sc 2d 1032 1041 Under this standard the issue to be resolved by a reviewing court is
not whether the trier of fact was right or wrong but whether the fact finder s conclusion
was a reasonable one
Stobart v State through Dept of Transp and
12
Development 617 So 2d 880 882 La 1993
Thus if the trial court s findings are
reasonable in light of the record reviewed in its entirety this court may not reverse even
if convinced that had it been sitting as trier of fact
it would have weighed the evidence
differently Parish of East Feliciana ex rei East Feliciana Parish Police Jury v
Guidry 2004 1197 p 15 La App 1 Cir 8 10 05
923 Sc 2d 45 53 writ denied 2005
2288 La 3 10 06 925 Sc 2d 515
The trial court heard from many medical experts regarding the scope of practice
issue Dr Laxmaiah Manchikanti
the single most published author in the United States
on interventional pain management techniques was accepted by the court as an expert
in interventional pain management with special expertise in credentialing education
training
research access and scope of practice
Dr Manchikanti developed the
definition of interventional pain management
that
is accepted by the United States
Congress today
He testified at length concerning the level of training needed to
perform interventional pain management procedures indicating that the health and
safety of the patients warrants the enhanced skills of a duly licensed and trained
medical physician
Dr Manchikanti opined that
interventional pain management
procedures are not traditionally within the scope of practice for a CRNA
Dr John Dombroski testified as an expert in the field of anesthesiology internal
medicine and pain medicine and was allowed to express an opinion with respect to the
scope and practice of medicine in those areas of medicine as they interface with other
healthcare professionals such as CRNAs
Dr Dombroski stated unequivocally that
CRNAs should not be allowed to be performing interventional pain management
procedures as they have never had the proper training required to do so He indicated
that the patients deserve the best care possible including a proper medical diagnosis
and the correct assessment by a duly licensed and trained medical physician
The trial court also was provided testimony from Dr Gabor Racz via deposition
Dr Racz is an anesthesiologist who is currently working as a professor He has taught
both physicians and CRNAs
Dr Racz is a highly decorated physician having been
slisted in the Best Doctors in America and receiving the lifetime achievement award
13
from the American Society of Interventional Pain Physicians He is also the President of
the World Institute of Pain
Dr Racz testified that under no circumstances should a
CRNA be allowed to perform interventional pain management procedures
He added
that if CRNAs wish to do these procedures they have every right to avail themselves to
the training and whatever it takes to be an interventional pain physician
Dr Racz
opined that nurses do not practice to a physician level and that a medical diagnosis
differs from a nursing diagnosis
Dr Frank Falco was accepted as an expert in the field of phYSical medicine He
is also board certified in rehabilitation pain medicine and sports medicine Dr Falco
testified regarding the requirements of a pain medicine fellowship training program He
explained that
the assessment of a chronic pain patient
is very complex and is not
simply putting a needle in someplace and injecting some solution in that area
Dr
Falco noted further
The pain fellow must understand based on a history tailored towards the
pain patient and the physical examination that is a complete examination
involving the neurological assessment a musculoskeletal assessment a
reviewing of all of the diagnostic data the CT
psychological assessment
the electrodiagnostic studies and then making a
the xray
the MRI
diagnosis based upon the evaluation and then laying out a treatment plan
We have three fellows in our ACGME Accredited Pain Medicine Fellowship
They are constantly supervised for the entire twelve months They get
four months of inpatient training
When asked if CRNAs had any role to play in the chronic pain management arena Dr
Falco responded that although CRNAs are excellently trained in providing anesthesia
services for surgery under the direction of an anesthesiologist
t hey do not have the
training that allows them to include in their scope of practice the management of
chronic complex pain
Dr Falco opined that it would be practicing medicine with a
license without the proper training which could lead to significant complications not
only from the procedures themselves but also from the patients being mismanaged
Dr Falco concluded that without going to medical school CRNAs cannot receive the
training needed to be able to competently perform these procedures
Jack Neary
a CRNA from New Hampshire
testified that
he performs
interventional pain management procedures unsupervised He acknowledged that he
14
has no training in radiology or neurology Mr Neary noted further that he knows of no
regulations or guidelines of any sort that apply nationally to institutions to assess the
competency ability credentials or skill sets of CRNAs with respect to interventional pain
management procedures
From his perspective once a CRNA gets their certificate and
the proper training and feels comfortable with a procedure they can do it With regard
to the scope of practice for CRNAs in New Hampshire Mr Neary testified that the New
Hampshire Board of Nursing has found that certain interventional pain management
procedures are within the scope of practice of a CRNA licensed in New Hampshire
Christine Langer testified regarding the educational requirements of a CRNA Ms
Langer is an instructor who trains CRNAs at the Louisiana State University School of
Nursing
She indicated she does not
teach a section called
interventional pain
management
noting that the majority of her teaching focuses on training CRNAs for
the hospital setting Ms Langer agreed that there is a distinct difference between acute
pain treatment
in a hospital or surgical setting and chronic interventional pain
management
She also acknowledged that at the time a student acquires a CRNA
certificate absent anything else no student in Louisiana is competent
to perform
interventional pain management procedures Ms Langer testified that she is not aware
of any post certification competency benchmarks for CRNAs related to interventional
pain management procedures
She agreed that CRNAs cannot make medical
diagnoses
Barbara Morvant
the Executive Director for the LSBN testified concerning the
licensing and credentialing of CRNAs in Louisiana She explained that in its role as a
licensing agency the LSBN credentials CRNAs for entry level practice and provides for
re certification requirements in their field of nurse anesthesia practice The LSBN also
investigates any complaints that may be filed against CRNAs When asked specifically
about the LSBN statement in question and whether the LSBN had any mechanism or
system designed to verify or in any way assess whether a CRNA has the documented
education
training experience
knowledge
skills
and abilities to safely perform
15
interventional pain management procedures Ms Morvant acknowledged that it has no
such system in place
Jackie Rowles is the President Elect of
the American Association of Nurse
Anesthetists and is a practicing CRNA in Indiana
She has been performing
interventional pain management procedures for almost five years Ms Rowles agreed
that she cannot make a medical diagnosis only a nursing diagnosis
She explained
however
that when her patients come to her for treatment
they have already been
seen by a physician and have a diagnosis Ms Rowles acknowledged that there are no
guidelines for assessing the competency
skill set abilities or training needed for
CRNAs to begin performing interventional pain management procedures Rather she
opined that a CRNA should be allowed to perform these procedures once the CRNA has
had the necessary education training and feels like they have the necessary skills
Kathleen Wren a CRNA with a Master of Science in nursing testified regarding
her
twenty three years of experience as CRNA practicing in eight different states
including Louisiana During her career as a CRNA she established three pain clinics and
three rural hospitals in Nebraska and Iowa Her pain clinics provided anesthetic blocks
for chronic pain patients Ms Wren stated that
in her experience as a CRNA the
injection of steroids and analgesics for pain management purposes including peripheral
nerve blocks epidural
injections and spinal
facet joint injections have always been a
part of the practice of CRNAs in the states she practiced in including Louisiana
However Ms Wren later admitted that she never practiced interventional pain
management in Louisiana
In her opinion it is within the scope of practice of a properly
trained nurse anesthetist
to perform interventional pain management procedures
outside of the hospital setting When asked whether she was aware of any certification
beyond the CRNA licensing process or any type of regulatory process in place that
would tell
the publiC whether a particular CRNA has met a threshold standard of
competency Ms Wren stated that she believed that was a function of the LSBN
Rusty Smith a CRNA in Louisiana testified that he performs interventional pain
management in Louisiana and has done so for several years Mr Smith indicated that
16
while he has been performing epidural
injections
for chronic pain relief
for
approximately twenty years it is just in the last four years of his practice that he has
begun offering spinal
facet joint
injections related to chronic pain management He
does these procedures exclusively at an ambulatory surgery center in Vidalia Louisiana
His largest referring physician for interventional pain management procedures is Dr
Russ Fairbanks When a patient comes to him from Dr Fairbanks the patient has been
examined and diagnosed Mr Smith indicated that when submitting codes to Medicare
and Medicaid he uses the diagnosis submitted by Dr Fairbanks When asked if he
continued with these interventional pain management procedures even after learning of
the preliminary injunction that was in place concerning the LSBN s statement Mr Smith
stated that to his knowledge the injunction was only against Mr Rantz
In fact Mr
Smith indicated that even after the preliminary injunction had been ordered Ms
Morvant
the Executive Director of the LSBN told him that there was nothing that would
prevent him from continuing in his practice
Dr Fairbanks accepted by the trial court as an expert in the field of orthopedics
testified regarding his relationship with Mr Smith According to Dr Fairbanks over the
last five years he has referred approximately three or four patients a week to Mr Smith
for interventional pain management procedures 10 Dr Fairbanks testified that after he
sees the patient and makes a diagnosis he refers the patient to Mr Smith who then
works under his direction
However Dr Fairbanks admitted that he is not
in the
operating suite when Mr Smith performs these procedures
In fact Dr Fairbanks
indicated that there may even be times when he is not
in the facility when the
procedures are being performed
Dr Fairbanks stated that he has never had any
complaints from his patients regarding the treatment they have received from Mr
Smith Although Dr Fairbanks denied having any direct financial ties with Mr Smith he
10 We note that Mr Smith did not testify during trial as to the number of interventional pain management
procedures he performed However after the trial on the merits there was a contempt hearing conceming
a subpoena duces tecum that Mr Smith had failed to respond to prior to trial The motion for contempt
against Mr Smith was ultimately dismissed and the parties entered into a stipulation that from 2004 to
2007 Mr Smith performed a total of twelve interventional pain management procedures at the ambulatory
surgical center in Vidalia
17
did acknowledge that he owns a percentage of the surgery center in Vidalia where Mr
Smith performs the procedures Dr Fairbanks also noted that there is an interventional
pain medicine physician in Natchez Mississippi which is only five miles from his surgery
center in Vidalia
We have thoroughly reviewed the record before us and find no abuse of
discretion by the trial court
in its declaratory judgment in favor of Spine Diagnostics
finding that the statement
issued by the LSBN expanded the scope of practice for
CRNAs into an area where they have not traditionally practiced and finding that
the
practice of interventional pain management
is not within the scope of practice of a
CRNA but rather is solely the practice of medicine Moreover with the foregoing legal
precepts in mind and having reviewed the evidence considered by the trial court below
we are satisfied that Spine Diagnostics met
its burden of proof on the permanent
injunction and the mandatory injunction The trial court s judgment regarding same is
reasonable supported by the record and not manifestly erroneous
AWARD OF REASONABLE LITIGATION EXPENSES
AND OTHER COSTS TO SPINE DIAGNOSTICS
The LSBN argues on appeal
that
the trial court erred in awarding Spine
Diagnostics
7 500 00 in reasonable litigation expenses pursuant to La R S 49 965 1
plus an award for other fees costs associated with expert witnesses and depositions
Spine Diagnostics argues that pursuant to La Code Civ P art 1920 1l the trial judge
has great discretion in awarding costs and its judgment should not be disturbed absent
an abuse of discretion
See MCI Telecommunications Corp v Kennedy 2004
0458 p 11 La App 1 Cir 3 24 05
899 So 2d 674 681 Based on applicable law and
jurisprudence we reverse that portion of the judgment that awarded Spine Diagnostics
any fees costs in excess of the 7 500 00 provided for in La R S 49 965 1
11 Article 1920 provides as follows
Unless the judgment provides otherwise costs shall be paid by the party cast
and may be taxed by a rule to show cause
Except as otherwise provided by law the court may render judgment for costs
or any part thereof against any party as it may consider equitable
18
Spine Diagnostics request for litigation expenses and the trial court s award were
based on La R S 49 965 1 A
It provides in pertinent part as follows
When a small business files a petition seeking
2 judicial review
the petition may include
of the validity or applicability of an agency rule
reasonable litigation
a claim against
the agency for the recovery of
If the small business prevails and the court determines that
expenses
justification the court may award
the agency acted without substantial
such expenses in addition to granting any other appropriate relief
Reasonable litigation expenses are defined as any expenses not exceeding
seven thousand five hundred dollars in connection with anyone claim reasonably
incurred in opposing or contesting the agency action including costs and expenses
incurred in both the administrative proceeding and the judicial proceeding fees and
expenses of expert or other witnesses and attorney fees
La
R5
49 965 1 D 1
Emphasis added
State ex rei Louisiana Riverboat Gaming
Com n v Louisiana State Police Riverboat Gaming Enforcement Div 99 2038
p 4 La App 1 Cir 9 22 00
768 So 2d 284 286 writ denied 2000 2926 La 1 5 01
778 So 2d 598
To qualify for this relief a small business must meet the criteria
defined by the Small Business Administration in Section 13 of the Code of Federal
Regulations Part 121
La R S 49 965 1 D 2
A physician s office with annual
receipts of less than 9 million is considered a small business under the applicable
regulation
13 C F R
121 201Y At the hearing on the preliminary injunction Dr
John Burdine owner of Spine Diagnostics testified that Spine Diagnostics annual
receipts total
less than 9 million per year A review of the record before us reveals
that this testimony was not contradicted
Thus Spine Diagnostics meets the eligibility
requirements set forth in the statute
Because La R S
49 965 1 provides for an award for reasonable litigation
expenses it is penal
in nature
It is a well settled rule of statutory construction that
penal statutes must be strictly construed and their provisions shall be given a genuine
construction according to the fair import of their words taken in their usual sense in
12 Effective August 26 2008 13 C F R 121 201 was amended to provide that a physician s office must now
have annual receipts of less than 10 million to be considered a small business
19
connection with the context and with reference to the purpose of the provision DOc s
Clinic APMC v State ex rei Dept of Health and Hospitals 2007 0480 p 32
La App 1 Cir
11 2 07
984 So 2d 711 732 writ denied 2007 2302 La 2 15 08
974 So 2d 665 Pursuant to the clear language of this statute any award for reasonable
litigation expenses is limited to 7 500 00 and is inclusive of any and all costs fees and
expenses associated with opposing or contesting the agency action Thus there can be
no award over and above the 7 500 00 for other expert fees and deposition costs such
as those awarded by the trial court in this matter Accordingly we affirm the 7 500 00
award for litigation expenses and reverse that portion of the judgment awarding all costs
associated with these proceedings
all expert costs and fees
and
costs of all
deposition transcripts
CONCLUSION
For the above and foregoing reasons we reverse that portion of the trial court s
judgment awarding all costs associated with these proceedings
all expert costs and
fees
and costs of all deposition transcripts
In all other respects we affirm All costs
associated with this appeal are assessed equally against the Louisiana State Board of
Nursing and the Louisiana Association of Nurse Anesthetists
AFFIRMED IN PART REVERSED IN PART
20