Hoffman v. State Med. Bd. of Ohio

[Cite as Hoffman v. State Med. Bd. of Ohio, 113 Ohio St.3d 376, 2007-Ohio-2201.]

HOFFMAN, APPELLANT, v. STATE MEDICAL BOARD OF OHIO, APPELLEE.
[Cite as Hoffman v. State Med. Bd. of Ohio,
113 Ohio St.3d 376, 2007-Ohio-2201.]
Ohio Adm.Code 4731-24-04(A), which prohibits anesthesiologist assistants from
performing epidural and spinal anesthetic procedures, is invalid because it
conflicts with R.C. 4760.09.
(No. 2005-1754 – Submitted January 10, 2007 – Decided May 23, 2007.)
APPEAL from the Court of Appeals for Franklin County,
No. 04AP-839, 2005-Ohio-3682.
__________________
SYLLABUS OF THE COURT
1. Ohio Adm.Code 4731-24-04(A), which prohibits anesthesiologist assistants
from performing epidural and spinal anesthetic procedures, is invalid
because it conflicts with R.C. 4760.09.
2. The term “assist” as used in R.C. 4760.09 means “to carry out procedures as
requested by the supervising anesthesiologist.”
__________________

LANZINGER, J.
{¶ 1} This discretionary appeal presents the question of whether Ohio
Adm.Code 4731-24-04(A), which prohibits anesthesiologist assistants from
performing epidural and spinal anesthetic procedures, conflicts with R.C.
4760.09, which permits anesthesiologist assistants
to assist supervising
anesthesiologists with the performance of a variety of procedures. We hold that
because there is a conflict, the Ohio Administrative Code regulation is invalid.
Case Background

SUPREME COURT OF OHIO

{¶ 2} In May 2000, the Ohio General Assembly enacted R.C. Chapter
4760, which regulates the training, certification, and practice of anesthesiologist
assistants in Ohio. Am.Sub.S.B. No. 278, 148 Ohio Laws, Part V, 11484 (“S.B.
278”). Previously, anesthesiologist assistants had not been required by statute to
undergo any specific training or certification.
{¶ 3} The appellee, the State Medical Board of Ohio, determines which
applicants satisfy certification requirements to become anesthesiologist assistants.
R.C. 4760.04. The board is also authorized by R.C. 4760.19 to adopt rules to
implement R.C. Chapter 4760. In May 2003, the board adopted Ohio Adm.Code
4731-24-04(A), which prohibits anesthesiologist assistants from performing
epidural and spinal anesthetic procedures.
{¶ 4} Joseph Hoffman, the appellant, is a certified anesthesiologist
assistant in Cleveland. Since he began his career in 1982, he has performed
epidural and spinal anesthetic procedures as part of his practice. In 2003, he filed
an action for declaratory and injunctive relief against the board, asserting that
Ohio Adm.Code 4731-24-04(A) conflicts with R.C. 4760.09, the statute that lists
the authorized activities of anesthesiologist assistants. After considering cross-
motions for summary judgment, the trial court granted summary judgment in
favor of Hoffman, finding the rule to be in clear conflict with the statute.
{¶ 5} On appeal to the Tenth District Court of Appeals, the board argued
that the administrative rule did not conflict with the statute. Both parties focused
their arguments on the word “assist,” a word found both in the administrative
rules and in the statute. The board asserted that the statute and rules should be
read together and interpreted to mean that the anesthesiologist assistant may
merely help the supervising anesthesiologist as the supervising anesthesiologist
personally performs the specified procedure. Hoffman, on the other hand,
contended that the statutory language should be interpreted to mean that the
anesthesiologist assistant, who is permitted to perform the procedure personally,

January Term, 2007

thereby helps the supervising anesthesiologist in the overall treatment of the
patient. The court of appeals reversed the trial court’s judgment, agreeing with
the board that the rule did not clearly conflict with the statute.
The Statute and the Administrative Rule
{¶ 6} R.C. 4760.09 governs the scope of practice of anesthesiologist
assistants and provides:
{¶ 7} “If the practice and supervision requirements of section 4760.08 of
the Revised Code are being met, an anesthesiologist assistant may assist the
supervising anesthesiologist in developing and implementing an anesthesia care
plan for a patient. In providing assistance to the supervising anesthesiologist, an
anesthesiologist assistant may do any of the following:
{¶ 8} “(A) Obtain a comprehensive patient history and present the
history to the supervising anesthesiologist;
{¶ 9} “(B) Pretest and calibrate anesthesia delivery systems and monitor
and obtain and interpret information from the systems and monitors;
{¶ 10} “(C) Assist
the
supervising
anesthesiologist with
implementation of medically accepted monitoring techniques;
{¶ 11} “(D) Establish basic and advanced airway interventions, including
intubation of the trachea and performing ventilatory support;
{¶ 12} “(E) Administer intermittent vasoactive drugs and start and adjust
vasoactive infusions;
{¶ 13} “(F) Administer anesthetic drugs, adjuvant drugs, and accessory

the

drugs;

{¶ 14} “(G) Assist the supervising anesthesiologist with the performance
of epidural anesthetic procedures and spinal anesthetic procedures;
{¶ 15} “(H) Administer blood, blood products, and supportive fluids.”
(Emphasis added.)

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{¶ 16} The board adopted Ohio Adm.Code 4731-24-04(A) after R.C.
4760.09 was enacted. This rule expressly prohibits anesthesiologist assistants
from performing epidural and spinal anesthetic procedures: “(A) Nothing in this
chapter of the Administration Code or Chapter 4760. of the Revised Code shall
permit an anesthesiologist assistant to perform any anesthetic procedure not
specifically authorized by Chapter 4760. of the Revised Code, including epidural
and spinal anesthetic procedures and invasive medically accepted monitoring
techniques. For purposes of this chapter of the Administrative Code, ‘invasive
medically
accepted monitoring
techniques’ means pulmonary
artery
catheterization, central venous catheterization, and all forms of arterial
catheterization with the exception of brachial, radial and dorsalis pedis
cannulation.”

The Conflict Issue Between the Rule and the Statute
{¶ 17} Administrative rules are designed to accomplish the ends sought
by the legislation enacted by the General Assembly. Carroll v. Dept. of Adm.
Servs. (1983), 10 Ohio App.3d 108, 110, 10 OBR 132, 460 N.E.2d 704.
Therefore, “[r]ules promulgated by administrative agencies are valid and
enforceable unless unreasonable or in conflict with statutory enactments covering
the same subject matter.” State ex rel. Curry v. Indus. Comm. (1979), 58 Ohio
St.2d 268, 269, 12 O.O.3d 271, 389 N.E.2d 1126. The board derives its power to
adopt administrative rules from R.C. 4760.19, which authorizes the board to adopt
rules to implement R.C. Chapter 4760. However, an administrative rule may not
add to or subtract from a legislative enactment. Cent. Ohio Joint Vocational
School Dist. Bd. of Edn. v. Ohio Bur. of Emp. Servs. (1986), 21 Ohio St.3d 5, 10,
21 OBR 269, 487 N.E.2d 288. If it does, it creates a clear conflict with the
statute, and the rule is invalid. Id.
{¶ 18} The board contends that the administrative rule does not conflict
with the statute. Pointing to the legislative history, the board argues that the

January Term, 2007

legislature did not intend to allow anesthesiologist assistants to perform epidural
and spinal anesthetic procedures. It is the board’s position that by using the word
“assist” in the statute, the legislature intended to preclude anesthesiologist
assistants from actually inserting the needle during epidural or spinal anesthetic
procedures. On the other hand, Hoffman argues that the legislature used the word
“assist” in its technical sense, which he argues is “to perform procedures as
requested by a supervising physician.” To support his assertion that this is the
technical meaning of the word “assist” within the field of anesthesiology,
Hoffman submitted an affidavit from Joel Zivot, M.D., a board-certified
anesthesiologist and the director of the anesthesiologist-assistant program at Case
Western Reserve University, who stated that, as used in the medical field, the
word “assist” has a technical meaning, which is “to perform the help that is
needed by a physician, and includes the actual performance of procedures under
appropriate circumstances.” Hoffman also notes that the board had used this
same meaning for “assist” in its administrative rules relating to R.C. Chapter
4760. Under Hoffman’s interpretation, an anesthesiologist assistant is allowed to
insert the needle under the direct supervision of the anesthesiologist during
epidural or spinal anesthetic procedures. Thus, he argues, the rule prohibiting that
practice conflicts with the statute.
{¶ 19} Because
prohibits
expressly
rule
the
administrative
anesthesiologist assistants from performing epidural or spinal anesthetic
procedures—procedures that R.C. 4760.09(G) allows an anesthesiologist assistant
to “assist” in, the outcome of this case depends upon the meaning of the word
“assist.”

Meaning of “Assist”
{¶ 20} “Assist” is not defined in R.C. Chapter 4760, but is found in the
Administrative Code’s definitional section
that regulates anesthesiologist
assistants. Ohio Adm.Code 4731-24-01. Hoffman claims that the Administrative

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Code definition is consistent with the technical meaning of “assist” that is
generally accepted in the field of anesthesiology. Ohio Adm.Code 4731-24-01(B)
states:

{¶ 21} “ ‘Assist’ means to carry out procedures as requested by the
supervising anesthesiologist, provided that the requested procedure is within the
anesthesiologist assistant’s training and scope of practice, is authorized by the
practice protocol adopted by the supervising anesthesiologist, and is not
prohibited by Chapter 4731. or 4760. of the Revised Code, or by any provision of
Chapter 4731. of the Administrative Code.”
{¶ 22} Parsing the definition, we observe that an anesthesiologist assistant
may carry out a procedure as requested by a supervising physician, provided that
the procedure satisfies three tests. First, the procedure must be within the
assistant’s training and scope of practice. R.C. 4760.031 sets forth the training
requirements for certification as an anesthesiologist assistant. Those requirements
include clinical experience consisting of at least 2,000 hours of direct patient
contact,
including
instruction on
indwelling vascular catheter placement,
including intravenous and arterial catheters; administration and maintenance of
volatile anesthetics, anesthetic agents, narcotics, hypnotics, and muscle relaxants;
patient monitoring; and regional anesthesia techniques.
These statutory
requirements ensure that the anesthesiologist assistant has the skills to perform the
procedures that a supervising anesthesiologist may request. It appears that
epidural and spinal anesthetic procedures are subjects covered within an
assistant’s training and scope of practice.
{¶ 23} Second, the procedure must be authorized by the practice protocol
adopted by the supervising anesthesiologist. R.C. 4760.08 requires that the
supervising anesthesiologist adopt written practice protocol that delineates the
services that the assistant is authorized to provide and the manner in which the
anesthesiologist will supervise the assistant. Significantly, the anesthesiologist

January Term, 2007

assistant is prohibited from practicing unless he or she is “under the direct
supervision and in the immediate presence” of an anesthesiologist “who is
actively and directly engaged in the clinical practice of medicine.” R.C. 4760.08.
Furthermore, the assistant may practice only in a hospital or ambulatory surgical
facility. Id.
{¶ 24} Finally, the procedures requested of an assistant must not be
prohibited by R.C. Chapter 4731 or 4760. R.C. Chapter 4760 sets forth the
procedures and activities that an assistant may perform. The only prohibitions
listed in the statutes are the supervision and location requirements set out in R.C.
4760.08 just discussed.
{¶ 25} In summary, the definition promulgated by the board in Ohio
Adm.Code 4731-24-01(B) explains that for the practice of anesthesiology, the
term “assist” means “[t]o carry out procedures as requested by the supervising
anesthesiologist.”
{¶ 26} In advancing its definition, the board argues that the legislature
intended the word “assist” to have its dictionary meaning of “to help,” or “to aid.”
It contrasts the legislature’s choice of verbs such as “administer,” “establish,” and
“calibrate,” used in other subsections of R.C. 4760.09, with its use of the word
“assist” in subsections (C) and (G). However, because the word “assist” has a
technical meaning in the field of anesthesiology, as demonstrated by Hoffman
through his expert’s affidavit and by the definition set forth in the Ohio
Administrative Code, we believe that the General Assembly intended that
technical meaning to apply.1 “It is established law in Ohio that [in construing
statutes], where a word has a technical definition differing from its dictionary

1. When S.B. 278, which enacted R.C. Chapter 4760, was debated and passed, the legislature
heard testimony from anesthesiologists and anesthesiologist assistants. Rotunda, Inc., Capitol
Connection, Professional Edition, at http://han2.hannah.com/htbin/f.com/oh_ban_123:SB278.
notes (accessed Mar. 27, 2007).

SUPREME COURT OF OHIO

definition, it shall be construed according to the former.” Youngstown Sheet &
Tube Co. v. Lindley (1978), 56 Ohio St.2d 303, 309, 10 O.O.3d 423, 383 N.E.2d
903. An axiom of statutory construction is that “[w]ords * * * that have acquired
a technical or particular meaning, whether by legislative definition or otherwise,
shall be construed accordingly.” R.C. 1.42; see also State v. Rentex, Inc. (1977),
51 Ohio App.2d 57, 5 O.O.3d 173, 365 N.E.2d 1274, paragraph one of the
syllabus (terms in a statute regulating a specialized industry that uses terms that
have acquired
technical meanings
in
the
industry require a
technical
interpretation).
{¶ 27} Applying the technical definition of “assist” to R.C. 4760.09 and
specifically to subsections (C) and (G), the statute reads:
{¶ 28} “In providing assistance to the supervising anesthesiologist, an
anesthesiologist assistant may do any of the following:
{¶ 29} “* * *
{¶ 30} “(C) [Carry out] the implementation of medically accepted
monitoring techniques [as requested by the supervising anesthesiologist].
{¶ 31} “* * *
{¶ 32} “(G) [Carry out] the performance of epidural anesthetic procedures
and
supervising
the
requested by
[as
spinal anesthetic procedures
anesthesiologist].”
{¶ 33} Therefore, the statute permits anesthesiologist assistants to perform
epidural and spinal anesthetic procedures provided that, pursuant to R.C. 4760.08,
the assistants are directly supervised by an anesthesiologist. The term “assist” as
used in R.C. 4760.09 means “to carry out procedures as requested by the
supervising anesthesiologist.”
{¶ 34} In contrast to the statute, Ohio Adm.Code 4731-24-04(A) states
that anesthesiologist assistants are not permitted to perform “any anesthetic
procedure not specifically authorized by Chapter 4760. of the Revised Code,

January Term, 2007

including epidural and spinal anesthetic procedures.” Because the administrative
rule prohibits anesthesiologist assistants from performing procedures that the
statute permits, the rule clearly conflicts with the statute.
{¶ 35} We emphasize that R.C. 4760.08 permits an anesthesiologist
assistant to carry out epidural and spinal anesthetic procedures as requested by
and performed under the direction of a supervising anesthesiologist who is
physically present in the room. Without such direct supervision, performance of
these procedures by an anesthesiologist assistant would violate the statute.
Conclusion
{¶ 36} We hold that Ohio Adm.Code 4731-24-04(A), which prohibits
anesthesiologist assistants from performing epidural and spinal anesthetic
procedures, is invalid because it conflicts with R.C. 4760.09. We therefore
reverse the judgment of the court of appeals.

Judgment reversed.
MOYER, C.J., PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL

and CUPP, JJ., concur.

__________________
Benesch, Friedlander, Coplan, Aronoff, L.L.P., N. Victor Goodman, C.
David Paragas, Marc S. Blubaugh, and Jennifer M. Turk, for appellant.
Marc Dann, Attorney General, Brian Laliberte, Deputy First Assistant
Attorney General, Elise Porter, Acting State Solicitor, Stephen P. Carney, Deputy
Solicitor, Lawrence D. Pratt, and Rebecca J. Albers, Assistant Attorneys General,
for appellee.
Colleen Treml; Janet L. Miller; Taft, Stettinius & Hollister, L.L.P., and
Robert E. Rich; Elayne R. Biddlestone; Lagos & Lagos, P.L.L., and James H.
Lagos; Eastman & Smith, Ltd., and Kevin Devaney, urging reversal on behalf of
amici curiae Case Western Reserve University, University Hospitals of
Cleveland, the Anesthesia Associates of Cincinnati, the Academy of Medicine of

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Cleveland/Northern Ohio Medical Association, McCallum Robinson Hoyt, M.D.,
M.B.A., Mercy Anesthesiologists, Inc., and Medical College of Ohio Physicians,
L.L.C.

Samuel B. Weiner Co., L.P.A., and Samuel B. Weiner, urging reversal for
amici curiae the American Academy of Anesthesiologist Assistants and the Ohio
Academy of Anesthesiologist Assistants.
Chester, Willcox & Saxbe, L.L.P., Sarah D. Morrison, and Charles R.
Saxbe, urging affirmance for amicus curiae Ohio Society of Anesthesiologists.
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