&n bsp; 

1.    Nurses; Physicians and Surgeons--supervision of nursing personnel involved in anesthesia activities--certified registered nurse anesthetist

    The trial court did not err by denying respondent Board of Nursing's motion for enforcement of a 1994 consent order seeking primarily an order from the trial court directing petitioner Medical Board to remove language from a Medical Board position statement 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, because: (1) the consent order did not constitute acquiescence by petitioners to respondent's proposed collaboration standard wherein the relationship between a CRNA and a physician changed from a relationship where the physician supervised the CRNA to a relationship in which the CRNA worked in collaboration with a physician; (2) the pertinent revised rule and the consent order must be read as requiring physician supervision for those nurse anesthetist activities which involve prescribing a medical treatment or making a medical diagnosis; (3) lack of details in the pertinent affidavits renders them ineffective as to the issue of acquiescence to the collaboration standard; (4) physician supervision of nurse anesthetists providing anesthesia care, when that care includes prescribing medical treatment regimens and making medical diagnoses, is a fundamental patient safety standard required by North Carolina law; (5) neither the 1994 consent order nor the position statement changed the statutory requirement of when physician supervision is necessary; (6) the Medical Board, as an administrative board established pursuant to N.C.G.S. § 90-2, cannot be estopped from exercising its duty to regulate the practice of medicine in the interest of the public; and (7) a state agency is prohibited from adopting a rule that enlarges the scope of a profession, occupation, or field of endeavor for which an occupational license is required.

2.    Trials--denial of objection and motion to strike consent order--failure to show reliance on incompetent evidence

    The trial court did not err by denying respondent's objection and motion to strike the submission of, and by admitting, considering, and basing its order on the consent order issued by the Medical Board in the matter captioned In re Peter Loren Tucker, M.D., or any related material, because: (1) appeal on this issue has been waived since respondent failed to object to the trial court's authorization of the filing of supplemental materials; and (2) respondent failed to meet its burden of proving that the trial court relied upon this alleged incompetent evidence in making its determination.

3.    Trials-_pro hac vice motion for counsel--amicus brief--failure to show reliance on incompetent evidence

    The trial court did not err by failing to rule on, or in implicitly overruling respondent's objection to, the pro hac vice motion for counsel for the American Society of Anesthesiology (ASA), and in considering the amicus brief tendered by counsel for ASA, because: (1) in the context of a bench trial, an appellant must show that the court relied on the incompetent or inadmissible evidence in making its determination; and (2) respondent failed to show that the trial court relied on this allegedly inadmissible evidence.

    Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Susan H. Hargrove, Dana E. Simpson, and Candice M. Murphy- Farmer, for petitioners North Carolina Medical Society, North Carolina Society of Anesthesiologists, Inc., and Eric W. Mason, M.D.

    Marcus Jimison and Thomas W. Mansfield 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, PLLC, by Johnny M. Loper, Leighton P. Roper, III, and John W. O'Tuel, III, for respondent

    BRYANT, Judge.

    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 protectiveorder 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.

(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:
5. It is jointly agreed that the provisions of the Nursing Practice Act, including the provisions found at N.C. Gen. Stat. § 90- 171.20(e) and (f), establish the scope of the practice of nursing by a registered nurse, and nothing contained in the rules of the Respondent at 21 N.C.A.C. 36.0226 in any way constitutes an expansion of such practice.

6. Respondent agrees to adopt as a final rule the revisions to 21 N.C.A.C. 36.0226 as proposed in the notice published in the North Carolina Register on August 15, 1994, and Petitioners agree not to challenge such revised rule under the North Carolina Administrative Procedure Act.

    The consent order called for an amendment to rule .0226. The pre-amendment rule .0226, in pertinent part, reads as follows:
(b) Qualifications and Definitions:
    (1) The registered nurse who completes a program accredited by the Council on Accreditation of Nurse Anesthesia Education Programs, is credentialed as a certified registered nurse anesthetist by the Council on Certification of Nurse Anesthetists, and who maintains recertification through the Council onRecertification of Nurse Anesthetists, may perform nurse anesthesia activities in collaboration with a physician, dentist, podiatrist, or other lawfully qualified health care provider.

    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:
(b) Qualifications and Definitions:
    (1) The registered nurse who completes a program accredited by the Council on Accreditation of Nurse Anesthesia Education Programs, is credentialed as a certified registered nurse anesthetist by the Council on Certification of Nurse Anesthetists, and who maintains recertification through the Council on Recertification of Nurse Anesthetists, may perform nurse anesthesia activities in collaboration with a physician, dentist, podiatrist, or other lawfully qualified health care provider, but may not prescribe a medical treatment regimen or make a medical diagnosis except under the supervision of a licensed physician.

(emphasis added)   (See footnote 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 determinationor 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: “[f]or reasons which follow, it is our opinion that it is not. Anesthesia care largely constitutes diagnosis of, or prescription of medical treatment for a human ailment, thus constituting the practice of medicine under the Medical Practice Act, (Article 1, Chapter 90, of the N.C. General Statutes).” 1998 N.C.A.G. 58 (12/31/98). To date, it appears the December 1998 Attorney General opinion remains the only determination by an entity not associated with a party to the present litigation, that some of the activities described in rule .0226 constitute the practice of medicine.
    In 2003, as a result of a great increase in the number of individuals receiving surgery in physicians' offices, the Medical Board adopted a position statement on office-based procedures (office-based anesthesia guideline). The position statement was the Medical Board's attempt to provide guidance to its licensees as to what might be considered acceptable standards of medical practice. The position statement covers such topics as credentialing, equipment maintenance, personnel, emergency procedures, infection control, performance improvement, informed consent, medical records, as well as the provision of anesthesia. While neither a statute nor a rule, the position statement was meant to serve as a guideline for physicians practicing surgery in their own offices.     On 1 May 2003, the Medical Board issued charges against Peter Loren Tucker, M.D. (Dr. Tucker) after an investigation stemming from an April 2001 incident. The Medical Board charged Dr. Tucker with practicing below minimum standards of medical practice when he failed to supervise his CRNA adequately. The facts involving the Tucker case were that a CRNA, employed by Dr. Tucker, had administered two cubic centimeters (cc's) of fentanyl, a highly potent analgesic, to a patient post-operatively after the patient received a mini-facelift performed by Dr. Tucker in his office. The CRNA did not possess prescribing privileges, yet she administered a schedule II controlled substance to the patient for her post-operative pain without authorization from Dr. Tucker. After the administration of the two cc's of fentanyl, the patient experienced respiratory arrest and efforts were made to revive the patient in Dr. Tucker's office. The patient, a 45-year-old mother of two, died three days later in the hospital as a result of respiratory arrest brought about by the fentanyl injection.
    The Medical Board referred its investigative material of the Tucker case to BON for appropriate action regarding the CRNA. On 6 August 2003, three months after the Medical Board issued public charges against Dr. Tucker and referred the case to BON for appropriate action, BON filed its motion to enforce the 1994 consent order, alleging, among other things, that:
Upon information and belief, in the nearly nine years since the parties' execution of the Consent Order, no investigation has been undertaken, nor has any other action been initiated or reported, by any Petitioner against any physician, surgeon, or CRNA on the grounds that such persons are practicing in conformity with the “collaboration” standard set forth in the [Rule .0226] rather than under the “supervision” standard that Petitioners now assert was required under the Consent Order.
Furthermore, at the 27 October hearing, counsel for BON made the following statement:
And, as we say in our motion, not once has the Medical Board, so far as we know, investigated a physician for suspicion of violating the supervision/collaboration issue. Not once have they investigated a nurse anesthetist. Not once have they brought anyone up on charges. There can be no more clear evidence of what the intent of the parties was back in 1994 than how they've lived that Consent Order for the ten years -- nine years plus.

    On 20 November 2003, the Medical Board and Dr. Tucker entered into a consent order resolving the charges against him.

12 Arthur L. Corbin, Corbin on Contracts § 1174, at 335 (2002); see also Cummings v. Dosam, Inc., 273 N.C. 28, 33, 159 S.E.2d 513, 517 (1968) (“if the nature and extent of the intended restriction cannot be determined with reasonable certainty from the language of the covenant, it will not serve as the basis for the issuance of an injunction”); Munchak Corp. v. Caldwell, 46 N.C. App. 414, 419, 265 S.E.2d 654, 658 (1980) (holding that “[a] court of equity is notauthorized to order the specific performance of a contract which is not certain, definite and clear, and so precise in all of its material terms that neither party can reasonably misunderstand it”).
     Petitioners argue that the only certain, definite, precise and clear behavior required of petitioners in the 1994 consent order is to refrain from challenging the revised rule .0226 under the Administrative Procedure Act (APA). It is undisputed that petitioners have not challenged the revised rule .0226 pursuant to the APA. Accordingly, petitioners argue that respondent's motion to enforce the consent order: (1) promotes an expansive interpretation of the 1994 consent order, and (2) asks the trial court to order specific performance of allegedly implied obligations.
    Petitioners also argue that respondent's efforts, to expand the 1994 consent order to prohibit conduct not described therein and to inhibit the Medical Board from publishing guidelines for its licensees, have no basis in law or in fact. In addition, petitioners contend that because the remedy requested would have no effect on the ability of the Medical Board to enforce N.C. Gen. Stat. § 90-14.12, or to pursue criminal penalties pursuant to N.C. Gen. Stat. §§ 90-18(a) and 90-21, the alleged potential injury would not be eliminated by invalidation of the position statement . We will analyze the arguments below.
     Respondent argues the trial court incorrectly construed revised rule .0226 and relevant statutes . However, the trial court was called upon to construe only the 1994 consent order. The relevant statutes and revised rule .0226 would only come under consideration to the extent that the 1994 consent order constituted a definitive agreement as to the construction of the statutes andrevised rule .0226.
    The relevant inquiry is, therefore, whether the 1994 consent order constitutes acquiescence by petitioners in the “collaboration standard” as argued by respondent. This Court is of the opinion that the consent order did not constitute acquiescence by petitioners to the collaboration standard. Petitioners initiated the 1993 action due to concerns that the proposed rule could be interpreted to allow CRNAs to administer anesthesia and prescribe medication without physician supervision, in violation of N.C. Gen. Stat. § 90-171.20(7)(e) and (f). The 1993 action was resolved after respondent agreed to add language to the proposed rule clarifying that the rule did not purport to allow CRNAs to prescribe a medical treatment or make a medical diagnosis except under the supervision of a licensed physician, and acknowledgment that the revised rule could not abridge the governing statutes.
    The 1994 consent order does not purport to interpret the governing statutes, the proposed rule, or the revised rule. Petitioners argue if they had intended to acquiesce in a uniform collaboration standard, they would not have initiated the 1993 action or would have dismissed the action pursuant to Rule 41 of the North Carolina Rules of Civil Procedure. Instead, they obtained concessions from respondent in order to resolve the 1993 action, those being, incorporation of the governing statutes into the revised rule and acknowledgment that revised rule .0226 could not abridge the governing statutes. Further, paragraph 7 of the 1994 consent order, which specifically provides that the 1994 consent order shall not be construed as acquiescence of either party in the position of the other, defeats respondent's argument.
    Petitioners' position on supervision of nursing personnel involved in anesthesia activities was set forth in the 19 November1993 declaratory ruling regarding the scope and definition of the practice of medicine pursuant to N.C. Gen. Stat. § 90-18. Respondent's position, that the 1994 consent order represents abandonment by the Medical Board of the physician supervision standard and a surrender to the collaboration standard, is inconsistent with and contradictory to the language of the 1994 consent order. The revised rule and the 1994 consent order must be read as requiring physician supervision for those nurse anesthetist activities which involve prescribing a medical treatment or making a medical diagnosis. Therefore, the position statement, which recommends that anesthesia in an office setting be administered by an anesthesiologist or a CRNA supervised by a physician, cannot be held to violate the 1994 consent order.
    Respondent asserts that the three affidavits it submitted to the trial court compelled the conclusion that the Medical Board has acquiesced in the collaboration standard for a nine-year period. However, these affidavits fail to support such conclusion. The affidavits make no mention of what specific medical acts were performed under the collaboration standard, nor do the affiants specifically claim that the respondent's licensees were unsupervised. This lack of detail renders these affidavits ineffective as to the issue of acquiescence in the collaboration standard.
    Therefore, we cannot agree with respondent's assertion that the affidavits compel a conclusion that the Medical Board abandoned the standard of care -- supervision of medical acts performed by nurse anesthetists. Furthermore, petitioners submitted to the trial court the consent order issued by the Medical Board in the matter captioned In Re Peter Loren Tucker, M.D. as an example of the Medical Board's enforcement of the supervision standard.     Physician supervision of nurse anesthetists providing anesthesia care, when that care includes prescribing medical treatment regimens and making medical diagnoses, is a fundamental patient safety standard required by North Carolina law. See N.C.G.S. § 90-18(b) (2003); N.C.G.S. § 90-171.20(7)(e). Neither the 1994 consent order nor the position statement changed the statutory requirement of when physician supervision is necessary.     Respondent asserts the Medical Board must follow the 1994 consent order regardless of whether the 1994 consent order could be read to impede its obligation to regulate the activities of its licensee physicians. However, even assuming the 1994 consent order could be read as evidencing an intent by the Medical Board to acquiesce in a collaboration standard, the Medical Board cannot be forbidden from advising its licensees on the standard of care in medical practice in order to protect the public interest. See Gaddis v. Cherokee County Road Comm., 195 N.C. 107, 111, 141 S.E. 358, 360 (1928) (“Administrative boards, exercising public functions, cannot by contract deprive themselves of the right to exercise the discretion delegated by law, in the performance of public duties.”). The Medical Board, as an administrative board established pursuant to N.C. Gen. Stat. § 90-2, cannot be estopped from exercising its duty to regulate the practice of medicine in the interest of the public.
    Moreover, a state agency is prohibited from adopting a rule that enlarges the scope of a profession, occupation, or field of endeavor for which an occupational license is required. N.C.G.S. § 150B-19(2) (2003); see also In re Trulove, 54 N.C. App. 218, 221, 282 S.E.2d 544 (1981) (“Administrative regulations must be drafted to comply with statutory grants of power and not vice versa.”). Accordingly, this assignment of error is overruled.

    Here, respondents failed to object to the admission of the evidence before the trial court, and further failed to meet its burden of proving that the trial court relied upon this alleged incompetent evidence in making its determination. This assignment of error is overruled.

21 N.C.A.C. 36.0226 (2003).

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