State of the states: Defining surgery

The state legislatures started their sessions in early January and are now considering thousands of bills that could impact patients, physicians, nonphysician health care providers, and virtually the entire health care system. Generally speaking, the American College of Surgeons (ACS) State Affairs area of the Division of Advocacy and Health Policy monitors and tracks more than 1,000 pieces of state legislation per year, with a focus on four main issues:

  • Medical liability reform, including caps on noneconomic damages, alternative dispute resolution, expert witness qualifications, standards of evidence, statute of limitations, and so on
  • Quality/patient safety, which includes scope of practice and injury prevention issues
  • Workforce/surgical practice, including the Uniform Emergency Volunteer Health Practitioners Act (UEVHPA) model and trauma system funding and development
  • Physician payment, including provider taxes

Of these four areas, considerable attention and many advocacy efforts are being directed toward defeating legislation that expands nonsurgeon health care practitioners’ scope of practice. Working in collaboration with a larger coalition of state medical societies and national surgical specialty societies is essential to ensure that health care professionals performing surgical procedures have the proper education, licensing, and training to do so.

It has become an all-too-common occurrence in state legislatures for one group of licensed health care professionals to seek modifications in their licensing acts in an effort to expand their scope of practice. Additional practice privileges may be reasonable in some cases if the health care professionals have the education, training, and experience necessary to gain these privileges. However, more frequently, these practitioners do not have the necessary medical/surgical training and experience that surgeons receive during medical school, residency training, and specialty fellowships. Patient safety and quality care are of vital importance in the debate over whether legislators should broaden scope of practice, especially when that expansion includes performing surgery.

Definition of surgery

A statutory definition of surgery at the state level can help to limit nonphysicians’ attempts to expand their scope into the performance of surgery. To this end, the College collaborated with a number of surgical specialty societies to enhance an existing ACS statement on laser surgery to include a definition of surgery. As described in ST-11, Statement on Surgery Using Lasers, Pulsed Light, Radiofrequency Devices, or Other Techniques, the College’s definition of surgery is as follows:

Surgery is performed for the purpose of structurally altering the human body by incision or destruction of tissues and is part of the practice of medicine. Surgery also is the diagnostic or therapeutic treatment of conditions or disease processes by any instruments causing localized alteration or transportation of live human tissue, which include lasers, ultrasound, ionizing, radiation, scalpels, probes, and needles. The tissue can be cut, burned, vaporized, frozen, sutured, probed, or manipulated by closed reduction for major dislocations and fractures, or otherwise altered by any mechanical, thermal, light-based, electromagnetic, or chemical means. Injection of diagnostic or therapeutic substances into body cavities, internal organs, joints, sensory organs, and the central nervous system is also considered to be surgery (this does not include administration by nursing personnel of some injections, such as subcutaneous, intramuscular, and intravenous when ordered by a physician). All of these surgical procedures are invasive, including those that are performed with lasers, and the risks of any surgical intervention are not eliminated by using a light knife or laser in place of a metal knife or scalpel. Patient safety and quality of care are paramount, and the College therefore believes that patients should be assured that individuals who perform these types of surgery are licensed physicians (defined as doctors of medicine or osteopathy) who meet appropriate professional standards.

Following the College’s adoption of ST-11—which was revised in April 2007—a resolution was introduced in the American Medical Association (AMA) House of Delegates (HOD) calling on the AMA to adopt the definition of surgery as created by the College. After considerable and thoughtful discussion, the HOD adopted this definition as stated in ST-11, providing uniformity within the house of medicine and surgery.

To see the full statement, go to http://www.facs.org/fellows_info/statements/st-11.html.

Status of related legislation

Proponents of legislation that establishes a definition of surgery have a lot of work to do on the state level because the majority of states do not have a regulatory definition of surgery in place. Of the 50 states, only 25 have defined surgery in laws or regulations. Ten of those states have definitions that include a form of the word “incision” (Alabama, Arkansas, Arizona, Florida, Indiana, Kansas, Louisiana, Maine, Ohio, Rhode Island). Nine states included “diagnosis” as a part of the definition of surgery, which closely mirrors the ACS statement (Arizona, Kansas, Maryland, Mississippi, Nevada, Ohio, Pennsylvania, West Virginia, Wisconsin). Three states specifically define surgery to start at the point of incision and end at the close of the incision or when all operative devices have been removed (Indiana, Maine, New Jersey). Other states specifically define types of surgeries, such as elective, cosmetic, minor, major, or ophthalmic surgery.

AMA definitions to consider

As noted earlier, the AMA adopted the College’s definition of surgery and specifically references ST-11 in their policy. Although this definition is broader in scope, it may not always be feasible to enact such a definition the first time related legislation is considered. In fact, some states start with a definition of cosmetic or reconstructive surgery to protect patients undergoing those specific types of surgical procedures from receiving care from other health care providers. The AMA HOD passed two policies regarding cosmetic and reconstructive surgery that would be important to consider and incorporate if this type of legislation is being pursued at the state level, and they are as follows:

  • Cosmetic Surgery (H-475.992). This surgery is performed to reshape normal structures of the body in order to improve the patient’s appearance and self-esteem. Reconstructive surgery is performed on abnormal structures of the body, caused by congenital defects, developmental abnormalities, trauma, infection, tumors, or disease. It is generally performed to improve function, but may also be done to approximate a normal appearance. This statement can be viewed on the AMA website.
  • Laser Surgery (H-475.988). The AMA supports the position that revision, destruction, incision, or other structural alteration of human tissue using a laser is surgery. This statement can be viewed on the AMA website.

2012 legislation

The ACS—along with the AMA Scope of Practice Partnership and other key state stakeholders—are currently tracking a number of bills that have been introduced during the 2012 session that address and define surgery in some capacity. These bills are as follows:

  • Pennsylvania bill, HB 838. This legislation amends the bill known as the Optometric Practice and Licensure Act and defines optometry and ophthalmic surgery while clearly prohibiting optometrists from performing ophthalmic surgery. The AMA Scope of Practice Partnership is working with the Pennsylvania Medical Society in the efforts to get this bill passed. It passed through the House in June 2011, and at press time was awaiting a vote in the Senate Consumer Protection and Professional Licensure committee.
  • Utah bill, SB 40. The Medical and Osteopathic Act defines cosmetic medical laser procedures to be the practice of medicine and osteopathy. It permits the delegation of certain cosmetic medical laser procedures by a physician; requires supervision by a physician if the cosmetic laser procedure is delegated; and prohibits the delegation of supervision when supervision is required. On March 2, 2012, this bill was approved by the Senate.
  • Virginia bill, HB 266. This bill was introduced due to the efforts of the Medical Society of Virginia. The bill states that surgery is defined as the structural alteration of the human body by the incision or cutting into of tissue for the purpose of diagnostic or therapeutic treatment of conditions or disease process by any instrument causing localized alteration or transposition of live human tissue, but does not include procedures for the removal of superficial foreign bodies from the human body, punctures, injections, dry needling, acupuncture, or removal of dead tissue. The bill also states that no person shall perform surgery unless they are licensed by the board of medicine as a doctor of medicine, osteopathy, or podiatry, and so on. This bill was signed by the governor on February 28, 2012, and will take effect July 1, 2012.

Future action

Legislation that defines surgery and its scope is a preventive and proactive means for state medical societies, ACS state chapters, and the AMA to ensure that patients are protected and treated with the highest level of care. The College encourages ACS chapters to participate in collaborative state advocacy initiatives to assist in the passage of definition of surgery legislation, specifically containing the ACS definition. For more information on the legislation discussed in this article contact Charlotte Grill at cgrill@facs.org.

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