AANA Believes That Strong Antitrust Laws And Enforcement Serve To Protect Competition Between Anesthesiologists

Based on historical and recent experience, the AANA believes that strong antitrust laws and enforcement serve to protect competition between anesthesiologists and CRNAs. CRNAs provide the same services as anesthesiologists with the same high degree of care. In the market for health services, a market which is widely considered complex and imperfect by economists, this sort of direct competition between rival professional groups should be vigorously defended. While many CRNAs practice in an anesthesia team which includes anesthesiologists and other ancillary support staff, CRNAs also practice as independent providers and receive direct reimbursement from multiple payors, as allowed by federal law. Independent CRNAs may function as independent contractors -- negotiating the best price for the service with different health entities. Therefore, many CRNAs compete directly with their physician colleagues -- anesthesiologists. Because of the prevalence of insurance in the health care field, recipients of anesthesia services are seldom the direct payors while physicians benefit from tremendous influence with insurance companies and others who actually pay for health care services. For this reason, the threat of swift and vigorous enforcement of the federal antitrust laws and the deterrent effect that those laws have on anticompetitive conduct are the most important protections that CRNAs have against anticompetitive conduct by physicians who may seek to exclude them from the market because they are lower cost competitors. In light of the power and influence of the medical community on staffing decisions, weakening the antitrust laws by new and sweeping immunity for negotiations between health care professionals and health care plans could undermine the ability of CRNAs to compete with anesthesiologists, or any other similarly positioned health professional. Further, the current antitrust laws serve to protect the ability of other types of established health professionals to offer competitive health services. These groups include the nurse-midwives who provide obstetrical care to women in need; optometrists who provide post-op cataract eye care; occupational therapists who diagnose and provide rehabilitation care; and speech-language pathologists. It is no exaggeration to say that the antitrust laws have been a major force enabling nonphysician health professionals to compete with physicians when they provide comparable services. Such competition has been an enormous boon to consumers and third party payors who benefit from having a wider choice of highly qualified providers. A Brief History of CRNAs as Anesthesia Competitors By the end of the nineteenth century, two developments - the discovery and utilization of anesthesia and the discovery and development of asepsis - resulted in an enormous expansion of the numbers and types of surgeries performed. Consequently, hospital construction flourished as the need grew for operating rooms to accommodate aseptic surgery. Simultaneously, demand grew for anesthesia specialists to focus their attention on the anesthesia care of patients while a physician performed surgery. Nurses, whose hallmark is monitoring vital signs and administering medications, were a natural choice to provide anesthesia. Physicians turned increasingly to sisters in Catholic hospitals, as well as to other registered nurses from a growing number of nurse training programs, to administer anesthesia with wide acceptance. World War I accelerated the demand for qualified CRNAs. Advances made in medications and equipment and nurse anesthesia education during the war contributed to the nurse anesthetists' dominant position in the anesthesia services field. Even before World War I, however, the growth and acceptance of the nurse anesthesia profession and its training programs provoked anticompetitive reactions from anesthesiologists. As early as 1911, in a harbinger of future anti-nurse anesthetist activity, counsel for the New York State Medical Society declared that the administration of an anesthetic by a nurse violated the law of the State of New York. The following year, the Ohio State Medical Board passed a resolution stating that only registered physicians could administer anesthesia. Early efforts to crush the nurse anesthesia profession gained momentum as anesthesiologists organized in their opposition to nurse anesthetists. In 1915, anesthesiologists founded the Interstate Association of Anesthetists ("IAA") which successfully petitioned the Ohio State Medical Board to withdraw recognition of Cleveland's Lakeside Hospital as an acceptable training school for nurses on the grounds that Lakeside's use of nurse anesthetists violated the Ohio Medical Board Act. Nurses and prominent surgeons alike protested the board's decision, and succeeded in having it reversed. Similarly, in 1917, the Kentucky State Medical Association, with prompting from organized anesthesiologists, passed a resolution prohibiting members from employing nurse anesthetists. In a test lawsuit brought by a nurse anesthetist, the Kentucky Court of Appeals ultimately rejected the proposition that the administration of anesthesia by a nurse constituted the unauthorized practice of medicine. In 1921, another anesthesiologist group, the American Association of Anesthetists, commenced a boycott by adopting a resolution prohibiting its members from teaching nurse anesthetists. Anesthesiologists also moved into the political arena, supporting legislation which would prohibit qualified nurse anesthetists from administering anesthesia. Unlike anesthesiologists, the American College of Surgeons, comprised of physicians who utilized nurse anesthetists, opposed legislative prohibitions of nurse-administered anesthesia. In a 1923 resolution, they opposed all legislative enactments which would prohibit qualified nurses from administering anesthesia. Surgeon support of nurse anesthetists, however, did not stop the anesthesiologists' efforts to keep nurse anesthetists from practicing their profession. In 1933, anesthesiologists associated with the Los Angeles County Medical Association brought a lawsuit against a nurse anesthetist claiming that nurse anesthetists' administration of anesthesia constituted the illegal practice of medicine. As had other courts, the California court found that the administration of anesthesia by nurse anesthetists was not the practice of medicine. In 1937, the American Society of Anesthesiologists ("ASA") was formed. (The American Association of Nurse Anesthetists had been founded in 1931). Immediately after its inception, the ASA presented a master plan for the eventual elimination of nurse anesthesia to the American College of Surgeons. The plan specified that nurses should not be permitted to continue to provide anesthesia. It also provided, inter alia, that a provision should be included in the Minimum Standards of Hospitals (the forerunners of the Joint Commission on Accreditation of Hospitals' standards) directing that the department of anesthesia in each hospital shall be under the direction and responsibility of a well-trained physician anesthetist. The plan cautioned, however, "that no legislation should be forced until physician anesthetists can take over the work in a competent way."