Florida/Georgia Personal Injury & Workers Compensation

...pointing out that the statute governing CRNA's requires only that they be supervised by a physician licensed pursuant to chapter 458, Florida Statutes, an osteopath licensed pursuant to chapter 459, or a dentist licensed pursuant to chapter 466. See § 464.012(3) & (4), Fla....

...f anesthesia, but to encompass as well the use of anesthesia by a nurse anesthetist under the dentist's direct supervision. With all due respect to the outstanding qualifications of its members, appellant's construction of sections 464.003(3)(c) and 464.012(4)(a) as permitting a dentist with no specialized training in the administration of anesthesia to supervise directly a nurse anesthetist merely by his presence alone is unreasonable. [3] Since they relate to similar subject matter, those sections must be read in pari materia with sections 466.017(3)(c), 466.002(2), and 466.003(8). Indeed, by their own terms, sections 464.003(3)(c) and 464.012(4)(a) mandate the observation of the dental profession's established protocol....

...be performed under the general supervision of a practitioner licensed under chapter 458, chapter 459, or chapter 466 within the framework of standing protocols which identify the medical acts to be performed and the conditions for their performance. Section 464.012(4)(a) adds: The nurse anesthetist may, to the extent authorized by established protocol approved by the medical staff of the facility in which the anesthetic service is performed, perform any or all of the following: .....

...otional conditions. See ch. 2006-204, § 1, Laws of Fla. Under section 90.503(1)(a)(5), the privilege now applies to "advanced registered nurse practitioners" as defined by section 464.003(6), Florida Statutes (2006), who are "certified" pursuant to section 464.012, Florida Statutes (2006), and whose primary practice is the diagnosis or treatment of mental or emotional conditions, including chemical abuse, limited to actions performed in accordance with the "Nurse Practice Act," Part I of Chapter 464, Florida Statutes....

...tal health centers pursuant to s. 394.907(1), who are engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction.; or 5. An advanced registered nurse practitioner certified under s. 464.012, whose primary scope of practice is the diagnosis or treatment of mental or emotional conditions, including chemical abuse, and limited only to actions performed in accordance with part I of chapter 464....

...cap as procedural, the federal courts would not), cert. denied, 540 U.S. 1111, 124 S.Ct. 1078, 157 L.Ed.2d 899 (2004). [31] The term "practitioner" includes any person licensed under Florida Statutes chapter 458 (Medical Practice) or certified under section 464.012 (providing for the certification of certain advanced registered nurse practitioners, including certified registered nurse anesthetists), among others, and any entity whose liability is based solely the actions of a practitioner....

...[32] Plaintiffs' administrative complaint also did not identify a specific nonpractitioner as negligent. [33] Although the evidence at trial demonstrated negligence on the part of Nurse Acosta, he is a certified registered nurse anesthetist, and, thus, a practitioner under the statute. See Fla. Stat. § 464.012....

...auspices of the State Board of Nursing, see § 464.003(3)(c), Fla. Stat. (2003), or conducted pursuant to a protocol developed and agreed to by the supervising physician and the ARNP. § 458.348, Fla. Stat. (2003) (formal supervisory relationship); § 464.012, Fla....

...al protocol established between a supervisory physician and the nurse, see § 458.348(1)(a), Fla. Stat. (2003), and further that in all circumstances, the physician "shall maintain supervision for directing the specific course of medical treatment." § 464.012(3), Fla....

...which the anesthetist service is performed, *37 perform any or all of the following: ... (4) Perform under the protocol procedures commonly used to render a patient insensible to pain during the performance of surgical, obstetrical ... procedures." § 464.012, Fla....

...The ARNP’s services included evaluating patients to determine whether they could be admitted into the facility or instead required hospital emergency room treatment. The ARNP was permitted to perform these services pursuant to sections 464.003(2) and 464.012(3), Florida Statutes (2011), which define the acts that an ARNP is permitted to perform under a physician’s general supervision. To perform under the physician’s general supervision at this facility, the ARNP executed a “Collaborative Practice Agreement” with the physician....

...e ARNP, and the detox facility. The estate’s claim against the physician ultimately was pled as a claim for negligent supervision of the ARNP. In the second amended complaint, the estate alleged that the physician violated a duty arising from section 464.012 to “maintain supervision for directing the specific course of medical treatment” rendered by the ARNP....

...(2011), by exceeding the maximum number of offices he could supervise in addition to his own primary practice location at the time of this incident. The physician later moved for partial summary judgment, essentially arguing that, as a physician, he owed no duty of care under section 464.012, because ARNPs are the subject of that statute. The trial court denied the motion, holding that, to the extent section 464.012 required an ARNP to work under a physician’s supervision, section 464.012 created a duty of care for the manner in which the physician supervised the ARNP. The estate ultimately entered into a settlement agreement with the ARNP and the detox facility....

...the ARNP’s treatment of the patient and did not know of the patient’s existence until after the patient’s death. During closing argument, the estate argued that the physician should be held liable because he violated his duties under sections 464.012 and 458.348. The trial court instructed the jury that the physician’s alleged violation of sections 464.012 and 458.348 was “evidence of negligence,” and that if it found that he “violated the statute[s], you may consider that fact, together with the other facts and circumstances in deciding whether [he] was negligent.” The physician objected to these instructions....

...the two errors discussed above. I respectfully dissent in part because the trial court committed a third error, that is, by denying the physician’s motion for partial summary judgment, which argued that, as a physician, he owed no duty of care under section 464.012, because ARNPs are the subject of that statute. Our review of the trial court’s denial of summary judgment involving statutory interpretation and duty of care is de novo....

...ty for negligence when the injury suffered by a person in the protected class is that which the statute was designed to prevent.” Palmer v. Shearson Lehman Hutton, Inc., 622 So. 2d 1085, 1090 (Fla. 1st DCA 1993) (emphasis added). In my opinion, section 464.012 does not create a duty of care upon physicians, because physicians’ behavior is not the subject of section 464.012. Chapter 464 is entitled “Nursing.” Section 464.001, Florida Statutes (2011), states that chapter 464’s Part I is entitled the “Nurse Practice Act.” Section 464.002, Florida Statutes (2011), states: The sole legis...

...It is the legislative intent that nurses who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state. (emphasis added). 8  Further, section 464.012, Florida Statutes (2011), proscribes the steps by which a nurse may become certified as an “advanced registered nurse practitioner” (ARNP), and describes the acts which an ARNP may perform. As a prelude to describing the acts which an ARNP may perform, section 464.012(3), Florida Statutes (2011), provides: An advanced registered nurse practitioner shall perform those functions authorized in this section within the framework of an established protocol that is filed with the board...

...466 shall maintain supervision for directing the specific course of medical treatment. (emphasis added). It is from this single emphasized sentence that the estate argued, and the trial court found, a statutory duty of care exists under section 464.012 for those physicians who supervise ARNPs. I disagree with that finding. Given chapter 464’s title of “Nursing,” chapter 464’s Part I title of “Nurse Practice Act,” section 464.002’s plain language statement that the “sole legislative purpose in enacting this part” is to regulate nurses, and section 464.012’s wholesale discussion of ARNPs, it cannot be logically concluded from the single emphasized sentence that physicians’ behavior is the subject of section 464.012, from which a duty of care may be created upon physicians. Rather, ARNPs’ behavior is the subject of section 464.012, from which a duty of care may be created upon ARNPs. As applied, if an ARNP performs acts not supervised by a practitioner currently licensed under chapter 458, chapter 459, or chapter 466, then an ARNP may be held liable under section 464.012....

...n 458.303(2), Florida Statutes (2002). The administrative law judge determined that the Board acted within its authority when adopting the rule. However, we disagree and conclude that the Board exceeded its delegated authority. We therefore reverse. Section 464.012, Florida Statutes (2002), of Chapter 464 governing the nursing profession, provides the criteria for becoming an advanced registered nurse practitioner, including a CRNA....

...e determined to be appropriate for preparing for and passing the national certification examination. (c) Graduation from a program leading to a master's degree in a nursing clinical specialty area with preparation in specialized practitioner skills. § 464.012(1)....

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

...r specialized nursing practice." § 464.003(6) (emphasis added). Therefore, any advanced registered nurse practitioner, including a CRNA, must first have a license to practice professional nursing and, thereby, is necessarily a registered nurse. See § 464.012(1)....

...joint committee. — The joint committee created by s. 464.003(3)(c) shall determine minimum standards for the content of established protocols pursuant to which an advanced registered nurse practitioner may perform medical acts ... set forth in s. [464.012(4)] and shall determine minimum standards for supervision of such acts by the physician.......

...the special problems of medically underserved areas. The Legislature created the joint committee in section 464.003(3)(c), which provides the committee shall consist of three members each from the Board of Nursing and the Board of Medicine. Because section 464.012(4)(a) provides specific acts that may be performed by a CRNA under the supervision of a licensed physician, it is up to the joint committee to work out the practice protocols and standards of supervision for the use of CRNAs....

...It determined that by having Lancaster, instead of Dr. Khan, who was Lancaster’s supervising physician, respond to the hospital nursing staff after-hours call regarding Deen’s deteriorating condition, Hospital Specialists violated its own written protocol and section 464.012, Florida Statutes, by allowing Lancaster to treat a patient with complex health problems. The trial court also found that Dr....

...lable on St. Vincent’s premises. Dr. Khan was also to be consulted for any condition that was outside the scope of Lancaster’s practice. Appellee also asserted that Lancaster’s care and treatment of Deen exceeded that permissible under section 464.012, Florida Statutes (2017)....

...They include the prescription or ordering of medication; initiating appropriate therapies; managing selected medical problems; monitoring and managing patients with stable chronic diseases; and initiating, monitoring, or altering therapies for certain uncomplicated acute illnesses. See § 464.012(3)–(4)....

...Instead, Appellee asserts that, due to the known complexity of Deen’s medical problems at the time, Lancaster’s care in ordering the intravenous saline bolus, without first consulting with Dr. Khan, violated both Hospital Specialists’ aforementioned protocol and section 464.012, Florida Statutes. Assuming that Lancaster’s action violated the protocol and section 464.012, the dispositive question here, though, is whether assigning Lancaster to take after-hours call for Dr. Khan’s patients, including Deen, was so outrageous in character or reprehensible to expose Hospital Specialists to a claim for punitive damages under section 768.72....

...under chapter 464, a naturopath licensed pursuant to chapter 462, a certified optometrist licensed -9- under chapter 463, a psychiatric nurse who has an advanced registered nurse practitioner certified under § 464.012, Fla....

...The ARNP’s services included evaluating patients to determine whether they could be admitted into the facility or instead required hospital emergency room treatment. The ARNP was permitted to perform these services pursuant to sections 464.003(2) and 464.012(3), Florida Statutes (2011), which define the acts that an ARNP is permitted to perform under a physician’s general supervision. To perform under the physician’s general supervision at this facility, the ARNP executed a “Collaborative Practice Agreement” with the physician....

...e ARNP, and the detox facility. The estate’s claim against the physician ultimately was pled as a claim for negligent supervision of the ARNP. In the second amended complaint, the estate alleged that the physician violated a duty arising from section 464.012 to “maintain supervision for directing the specific course of medical treatment” rendered by the ARNP....

...The physician’s answer alleged affirmative defenses, including that liability should be allocated to the detox facility as a Fabre defendant. The physician later moved for partial summary judgment, essentially arguing that, as a physician, he owed no duty of care under section 464.012, because ARNPs are the subject of that statute. The trial court denied the motion, holding that, to the extent section 464.012 required an ARNP to work under a physician’s supervision, section 464.012 created a duty of care for the manner in which the physician supervised the ARNP. 3  The estate ultimately entered into a settlement agreement with the ARNP and the detox facility....

...facility’s conduct “caused or contributed to cause the damage involved in the case.” The trial court denied the motion. During closing argument, the estate argued that the physician should be held liable because he violated his duties under sections 464.012 and 458.348. The trial court instructed the jury that the physician’s alleged violation of sections 464.012 and 458.348 was “evidence of negligence,” and that if it found that he “violated the statute[s], you may consider that fact, together with the other facts and circumstances in deciding whether [he] was negligent.” The physician objected to these instructions....

...the three errors discussed above. I respectfully dissent in part because the trial court committed a fourth error, that is, by denying the physician’s motion for partial summary judgment, which argued that, as a physician, he owed no duty of care under section 464.012, because ARNPs are the subject of that statute. Our review of the trial court’s denial of summary judgment involving statutory interpretation and duty of care is de novo....

...ty for negligence when the injury suffered by a person in the protected class is that which the statute was designed to prevent.” Palmer v. Shearson Lehman Hutton, Inc., 622 So. 2d 1085, 1090 (Fla. 1st DCA 1993) (emphasis added). In my opinion, section 464.012 does not create a duty of care upon physicians, because physicians’ behavior is not the subject of section 464.012. Chapter 464 is entitled “Nursing.” Section 464.001, Florida Statutes (2011), states that chapter 464’s Part I is entitled the “Nurse Practice Act.” Section 464.002, Florida Statutes (2011), states: The sole legis...

...requirements for safe practice. It is the legislative intent that nurses who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state. (emphasis added). Further, section 464.012, Florida Statutes (2011), proscribes the steps by which a nurse may become certified as an “advanced registered nurse practitioner” (ARNP), and describes the acts which an ARNP may perform. As a prelude to describing the acts which an ARNP may perform, section 464.012(3), Florida Statutes (2011), provides: An advanced registered nurse practitioner shall perform those functions authorized in this section within the framework of an established protocol that is filed with the board...

...466 shall maintain supervision for directing the specific course of medical treatment. (emphasis added). It is from this single emphasized sentence that the estate argued, and the trial court found, a statutory duty of care exists under section 464.012 for those physicians who supervise ARNPs. I disagree with that finding. Given chapter 464’s title of “Nursing,” chapter 464’s Part I title of “Nurse Practice Act,” section 464.002’s plain language statement that the “sole legislative purpose in enacting this part” is to regulate nurses, and section 464.012’s wholesale discussion of ARNPs, it cannot be logically concluded from the single emphasized sentence that physicians’ behavior is the subject of section 464.012, from which a duty of care may be created upon physicians. Rather, ARNPs’ behavior is the subject of section 464.012, from which a duty of care may be created upon ARNPs. As applied, if an ARNP performs acts not supervised by a practitioner currently licensed under chapter 458, chapter 459, or chapter 466, then an ARNP may be held liable under section 464.012....

...eration, and denied him a fundamentally fair trial. Again, we disa- gree. Under Florida law, advanced practice registered nurses, like Stevens, may perform certain acts within their specialty. Fla. Stat. § 464.012(4). Relevant here, “psychiatric nurse[s] . . . may prescribe psychotropic controlled substances for the treatment of mental dis- orders.” Id. § 464.012(4)(e)....

...Moreover, the state’s regulatory board must “establish a committee to recommend a formulary of con- trolled substances that an advanced practice registered nurse may not prescribe or may prescribe only for specific uses or in limited quantities.” Id. § 464.012(6)(a)....