You are referring to the "captain of the ship" doctrine. The legal term is
vicarious liability. It is real. Surgeons get sued for it. And they can't always get out of it. Yes, there are a lot of opinions flying around the Intrawebs about this topic, mostly from CRNAs... and many of them are just plain wrong.
http://www.vawd.uscourts.gov/OPINIONS/JONES/202CV00043OPN.PDF
This is at least one example (with another referenced in the proceedings) where a surgeon was denied from getting himself removed (i.e., summary judgment) from a lawsuit because it was felt by this judge that a jury should determine whether he was "vicariously liable" for the actions of this CRNA. (Whether or not he ultimately lost the case, I'm not sure. Getting sued is bad enough.)
CRNAs cannot practice medicine. Therefore, the bottom line is that they cannot practice the full scope of anesthesia care. A physician is required and must in effect order anesthesia, thus "signing off" on that anesthetic, whether or not they are actually legally required to sign the chart for billing purposes per the CMS opt-out ruling. While allowing for billing, nowhere does it completely remove the supervision requirement (or co-requisite legal responsibility on part of the physician ordering their medical/surgical care... at least one example of which I provided above). Remember, we are only talking about billing for services here.
Let me frame this another way... Say, for example, the nursing board in a particular state successfully petitions the legislature to change the nursing regulations to allow dialysis nurses to be "bill independently" when they provide dialysis for a patient (i.e., that they can get paid for their services separate from an arrangement at an approved hospital or dialysis center). A physician
still has to order dialysis. Sure, that physician may or may not understand the exact technical nature of hooking up the dialysis machine, priming the dialysate bags, and actually administering the dialysis, but it is a medical diagnosis and determination that this particular patient needed dialysis. If that nurse screws up while administering the dialysis and gets sued, the doctor may not necessarily be liable if a technical error occurred by that nurse. But, they can be liable if they ordered the wrong dialysis or too much dialysis (or the like) on that patient and the patient had a bad outcome. The nurse, after all, was following that medical order.
Yet framed still another way that also poses a dilemma for CRNAs (and a real one)... Suppose a medical doctor says a patient isn't "cleared" for surgery. What does that CRNA (or the patient) then do? Waste time and try to get a second opinion? I, as a physician,
am the second opinion. That is, in my
medical determination I can make an overriding decision about whether nor not it is safe to proceed. A CRNA cannot legally do this. That's why it's called practicing medicine, and a CRNAs don't practice medicine. This type of scenario happens more frequently than you may realize. Sure, they can
refuse to give anesthesia if they feel it isn't safe, but that's not what I'm talking about. (And see how long a solo CRNA practice lasts if that becomes a routine thing.)
As an example, I took care of a patient not that long ago where an internal medicine doctor wrote in the chart, "
Patient has critical aortic stenosis and therefore must avoid general anesthesia. Spinal anesthesia indicated or postpone procedure." He was dead wrong, and the patient would have been dead as well if that plan had been followed. Now, if an "independently" practicing CRNA in an opt-out state had followed that recommendation and killed the patient, you can bet that this particular medicine doctor would have been sued, probably successfully, under the "vicarious liability" provision because they had made recommendations outside their scope of expertise which were subsequently followed. (But, hopefully a CRNA would have had enough good sense to refuse to do it as ordered... although based on some of the ones I've worked with, I'm not so sure.)
So, putting aside the admission that I was not until recently fully abreast of how certain cohorts of patients seek healthcare in rural Idaho, perhaps at strip malls or shopping centers, suffice it to say that I work in a hospital in the mid-Atlantic and (fortunately) don't have to deal with that particular scenario anyway. However, I know a lot about the
subtleties of this particular topic, aside from the rhetoric and propaganda from the AANA, because I live it everyday. Still, if you haven't had enough of this discussion, I suggest you take it to the Anesthesia sub-forum. I'm sure people over there will be more than helpful and willing to discuss.
-Skip