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    When boards of nursing and boards of medical examiners disagree, who wins?

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    David Goldberg, M.D., J.D.
    Dr. Laser has a large cosmetic dermatology practice in a highly regulated state. As a general rule, he and his fellow physicians perform most of the laser procedures in his office.

    With the onset of the recession, however, many of his patients are no longer able to afford his office fees. In an attempt to lower his fees, Dr. Laser spent an enormous amount of time teaching his nurses to use lasers for various problems such as hair removal, facial toning and acne treatment.

    Dr. Laser sent his staff to many training courses and established rigid in-office guidelines for laser treatments. Not only did the staff become expert at treatment protocols, they also became adept at providing expert informed consent and lessening the incidence of complications. Dr. Laser was comfortable that his nonphysician providers were as good as, or better than, some physicians performing similar treatments.

    Unfortunately, one of Dr. Laser's patients who was treated by a laser nurse (without any physician present at the time of the incident) now has a scar on her upper lip. The patient was given appropriate consent, and the utilized technique was appropriate. The patient, however, immediately sought legal counsel. The plaintiff patient's attorney had the medical records evaluated by two experts in the field, and no breach in the standard of care could be found. No negligence was present. No lawsuit was filed in court.

    Not being satisfied, the patient filed a complaint against the nurse and Dr. Laser with the state board of nursing. The substance of her complaint was that a nurse can never be as "good" as a physician, and therefore, Dr. Laser and his nurse should be sanctioned.

    Of course, the board of nursing has no jurisdiction over Dr. Laser, who like all physicians was licensed by and comes under the jurisdiction of his state board of medical examiners. The state board of nursing has administrative regulations that allow nurses to perform laser treatments. Dr. Lasers' nurse is not sanctioned by the state board of nursing.

    The aggrieved plaintiff patient then filed a complaint against Dr. Laser with his state board of medical examiners. Her contention was that treatment in a medical office is the practice of medicine and therefore cannot be delegated to a nurse. She sought sanctions against Dr. Laser. The state board administrative regulations do state that laser treatment is considered the practice of medicine; however, the regulations do not specifically address the delegation of treatment to nurses.

    The aggrieved plaintiff wants Dr. Laser's license revoked. Should Dr. Laser be worried?

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    David J. Goldberg, M.D., J.D.
    Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, ...

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