Court Upholds Expanded Practice Roles for Nurses

Sermchief v. Gonzales, 660 S. W.2d 683 (Mo. banc 1983) [hereinafter referred to as Serm-chief].

Rev. Stat. Mo. §§335.016.8, 335.036.1(2).

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).

Sermchief, supra note 1, at 684–85.

Id.

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).

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).

Sermchief, supra note 1, at 684.

Rev. Stat. Mo. §335.016.8 (1984 supp.).

Rev. Stat. Mo. §334.010 (1966).

Rev. Stat. Mo. §334.155 (1984 supp.).

Sermchief, supra note 1, at 686.

Id. at 689 (citations omitted).

See generally Bullough B. , The Law and the Expanding Nursing Role (Appleton-Century-Crofts, New York, N.Y.) (2d ed. 1980).

Comment, Interpreting Missouri's Nursing Practice Act, Saint Louis University Law Journal 26(4); 931, 946 (1982) (citations omitted).

Id. at 946.

Sermchief, supra note 1, at 689–90.

Id. at 688.

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.

See Toth v. Community Hosp. at Glen Cove, 292 N.Y.S.2d 440, 450 (N.Y. 1968).

Rev. Stat. Mo. §335.016.8 (1984 supp.).

Sermchief, supra note 1, at 690 (emphasis added).

Id. at 688.

288 P.2d 581 (Cal. App. 1955).

Id. at 587.

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).

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).

Sermchief, supra note 1, at 684.

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.

Hall, supra note 29; Cazalas M.W. , Nursing and the Law (Aspen Systems Corp., Rockville, Md.) (3d ed. 1978) at 223–30.

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).

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.

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.

Sermchief, supra note 1, at 690 n.6. See Cazalas , supra note 30, at 223–30 (state-by-state summary of nursing practice acts).