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Court Upholds Expanded Practice Roles for Nurses

Published online by Cambridge University Press:  27 April 2021

Michael A. Wolff
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Extract

In the first reported judicial interpretation of modern nursing practice acts, Sermchief v. Gonzales, the Missouri Supreme Court has decided that “new functions for nurses delivering health services” may evolve without statutory constraints.’ The notion that nurses in expanded roles are practicing medicine without a license was cast aside, as the court specifically held that nurses may render diagnosis and treatment in accordance with standing orders and protocols. While directly affecting only nurses in Missouri, the court's recognition of nursing as a profession with its own prerogatives and responsibilities has important implications for the future of nursing.

At issue was Missouri's nursing practice act which had been drafted with the assistance of members of the Missouri Nurses Association and passed by the legislature in 1975.

Type
NLE Rounds
Information
Law, Medicine and Healthcare , Volume 12 , Issue 1 , February 1984 , pp. 26 - 29
Copyright
Copyright © American Society of Law, Medicine and Ethics 1984

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References

Sermchief v. Gonzales, 660 S. W.2d 683 (Mo. banc 1983) [hereinafter referred to as Serm-chief].Google Scholar
Rev. Stat. Mo. §§335.016.8, 335.036.1(2).Google Scholar
37 Op. Att'y Gen. 32 (1980). This opinion was tacitly overruled several months later; 37 Op. Att'y Gen. 105 (1980). See Wolff, M. Hellow, J., Legal Rx for Nursing Practice, Missouri Nurse 49: 14 (April 1980).Google ScholarPubMed
Sermchief, supra note 1, at 684–85.Google Scholar
Id.Google Scholar
See Court Ruling Against Nurses Called Threat to Health Care, St. Louis Post-Dispatch, October 3, 1983, at 3X; Doyle, E. Meurer, J., Practicing Medicine Without a License, Nurse Practitioner, pp. 40–41 (June 1983).Google Scholar
Sermchief, supra note 1, at 684. The court relied on Mo. Const. art. V §3. The issue, initially raised in the trial court was that the statutory scheme was void for vagueness, in contravention of the fourteenth amendment due process clause and the parallel provision of the Missouri Constitution. Sermchief, supra note 1, at 685. To succeed on that basis, the court would have had to be persuaded that the definition of professional nursing in Rev. Stat. Mo. §335.016.8, upon which the nurses relied in delivering their services, was invalid. Fortunately for nursing practice, this argument did not succeed. The result would have been to require the legislature to write a highly detailed definition of nursing that would have gone directly contrary to the evolutionary view of nursing taken by the drafters of the modern nursing practice act and recognized by the supreme court. But see Tuma v. Board of Nursing 593 P.2d 711 (Idaho 1979); Jacobs v. United States, 436 A.2d 1286 (D.C. App. 1981).Google Scholar
Sermchief, supra note 1, at 684.Google Scholar
Rev. Stat. Mo. §335.016.8 (1984 supp.).Google Scholar
Rev. Stat. Mo. §334.010 (1966).Google Scholar
Rev. Stat. Mo. §334.155 (1984 supp.).Google Scholar
Sermchief, supra note 1, at 686.Google Scholar
Id. at 689 (citations omitted).Google Scholar
See generally Bullough, B., The Law and the Expanding Nursing Role (Appleton-Century-Crofts, New York, N.Y.) (2d ed. 1980).Google Scholar
Comment, Interpreting Missouri's Nursing Practice Act, Saint Louis University Law Journal 26(4); 931, 946 (1982) (citations omitted).Google Scholar
Id. at 946.Google Scholar
Sermchief, supra note 1, at 689–90.Google Scholar
Id. at 688.Google Scholar
Id. at 689. Protocols have been referred to as “pre-determined medical plans of action for various illnesses, diseases, examinations, etc.” Comment, Interpreting Missouri's Nursing Practice Act, Saint Louis University Law Journal 26(4): 931, 941 n.57 (1982). A standing order is generally understood to mean an order for medication or other treatment that is not specific to a particular patient, but can be administered whenever a given condition is found. In Sermchief, oral contraceptives were administered after the nurse's examination determined such medication to be appropriate.Google Scholar
See Toth v. Community Hosp. at Glen Cove, 292 N.Y.S.2d 440, 450 (N.Y. 1968).Google Scholar
Rev. Stat. Mo. §335.016.8 (1984 supp.).Google Scholar
Sermchief, supra note 1, at 690 (emphasis added).Google Scholar
Id. at 688.Google Scholar
288 P.2d 581 (Cal. App. 1955).Google Scholar
Id. at 587.Google Scholar
See Johnson, S., Regulatory Theory and Prospective Risk Assessment in the Limitation of Scope of Practice, Journal of Legal Medicine 4(4): 447, 454–64 (December 1983).Google ScholarPubMed
Rev. Stat. Mo. §334.100.2(5) (1984 supp.). A physician may be disciplined for, inter alia, incompetence, misconduct or gross negligence. Rev. Stat. Mo. §334.100.2(5). A nurse may be disciplined for the same things; Rev. Stat. Mo. §335.066.2(5). There is, of course, the question of how many instances of incompetence or negligence are sufficient to invoke the disciplinary standard. See Kansas State Board of Healing Arts v. Foote, 436 P.2d 828, 832, 837 (Kan. 1968).Google Scholar
Sermchief, supra note 1, at 684.Google Scholar
Rev. Stat. Mo. §335.016 (1984 supp.). See generally Hall, The Legal Scope of Nurse Practitioners under Nurse Practice and Medical Practice Act, in The New Health Professionals (Aspen Systems Corp., Rockville, Md.) (1977) at 106–15.Google Scholar
Hall, supra note 29; Cazalas, M.W., Nursing and the Law (Aspen Systems Corp., Rockville, Md.) (3d ed. 1978) at 223–30.Google Scholar
Rural health clinic services furnished by a nurse practitioner are reimbursable if they are of a type which the nurse practitioner is legally permitted to perform. 42 C.F.R. §§405.2411(a)(3), 405.2414(a)(4). A nurse-midwife is required to be legally authorized to practice under state law or regulations, 42 C.F.R. §405.2401(b)(10)(ii).Google Scholar
The Board of Nursing is given broad authority to adopt rules and regulations. Rev. Stat. Mo. §335.036.1(2). In the absence of an authoritative statement from the board there was one clearly erroneous opinion from the Attorney General that stated that nurses in Missouri have no authority to engage in primary health care that includes diagnosis and treatment. See supra note 3, and accompanying text.Google Scholar
Frank v. South, 194 S.W. 375 (Ky. App. 1917); Chalmers-Francis v. Nelson, 57 P.2d 1312 (Cal. 1936). These are the only two other reported decisions regarding the scope of nursing practice. Both involved challenges to nurses administering anesthesia on the grounds that such practice was the unauthorised practice of medicine. The court in Frank v. South, which was followed by the court in Chalmers-Francis v. Nelson, declined to consider administration of anesthesia to be the practice of medicine and thus solely the domain of physicians. To do so, the court said, “would deprive the people of all services in sickness, other than those which are gratuitous, except when rendered by a licensed physician.” 194 S.W. at 380. These decisions, along with Sermchief, might lead one to believe that courts are receptive to scope-of-nursing-practice issues and thus appropriate places for such decisions to be made. However, presumably in the majority of states, non-litigative solutions or processes are utilized. See also Johnson, supra note 26, at 453.Google Scholar
Sermchief, supra note 1, at 690 n.6. See Cazalas, supra note 30, at 223–30 (state-by-state summary of nursing practice acts).Google Scholar