Colorado Medical Society v. Hickenlooper
2012 WL 2928528
Colo. Ct. App.2012Background
- Doctors sue Governor in his official capacity seeking to invalidate the opt-out of physician supervision for CRNAs under Medicare rules.
- Governor authorized opt-out after consulting Colorado Medical and Nursing Boards, declaring it consistent with state law and in citizens' best interests.
- Colorado Nurse Practice Act and Nursing Board regulate advanced practice nurses, including CRNAs, with delegated medical functions requiring supervision when applicable.
- CRNAs administer anesthesia under an independent nursing functions framework rather than delegated medical functions, according to the court.
- District court dismissed the complaint for failure to state a claim; Intervenors joined the Governor’s dismissal motion.
- Court holds that opt-out is permitted by state law and federal regulations; CRNAs may administer anesthesia without physician supervision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the Governor's opt-out reviewable by courts? | Doctors contend the opt-out violates state law and is judicially reviewable. | Governor argues the decision is non-justiciable political question or governed by state/federal law with standard review. | Not a political question; subject to statutory interpretation. |
| Does Colorado law permit CRNAs to administer anesthesia without physician supervision? | Act requires physician supervision for all delegated medical functions; CRNAs must be supervised. | CRNAs perform independent nursing functions and do not perform delegated medical functions; no physician supervision required. | CRNAs may administer anesthesia without physician supervision. |
| Does the Doctor’s claim of Captain of the Ship doctrine affect outcome? | Physician supervision liability should extend via captain of the ship doctrine. | Statutory framework and insurance provisions adequately address liability; doctrine does not change result. | Captain of the ship doctrine does not require a different result. |
| Is the Doctors' standing sufficient to challenge the opt-out? | Doctors allege injuries to licenses, reputation, and patient safety as injury-in-fact affecting protected interests. | Standing lacks a legally protected interest and the federal regulation cited does not create a private right of action. | Standing satisfied; injuries to licenses, reputation, and patient safety are injuries-in-fact and protected interests. |
Key Cases Cited
- Baker v. Carr, 369 U.S. 186 (U.S. Supreme Court 1962) (nonjusticiability of political questions framework)
- Lobato v. State, 218 P.3d 358 (Colo. 2009) (separation of powers; judicial review of government actions)
- Colorado Common Cause v. Bledsoe, 810 P.2d 201 (Colo. 1991) (Colorado constitutional separation of powers; judiciary role)
- Nixon v. United States, 506 U.S. 224 (U.S. Supreme Court 1993) (political question and judicial standards)
- City of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427 (Colo. 2000) (standing; third-party impact)
- California Society of Anesthesiologists v. Superior Court, 204 Cal.App.4th 390 (Cal. App. 2012) (opt-out considerations for CRNAs; state-law alignment with federal rules)