Davis v. Physician Assistant Board ( 2021 )

Filed 7/2/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
RODNEY EUGENE DAVIS, C084559
Plaintiff and Appellant, (Super. Ct. No.
34201680002370CUWMGDS)
v.
PHYSICIAN ASSISTANT BOARD,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Sacramento County, Michael
P. Kenny, Judge. Affirmed.
Bonne, Bridges, Mueller, O’Keefe & Nichols, Peter R. Osinoff and Edward Idell
for Plaintiff and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Matthew M. Davis,
Supervising Deputy Attorney General, and Martin W. Hagan, Deputy Attorney General,
for Defendant and Respondent.
1
Plaintiff Rodney Eugene Davis, a physician assistant, learned to perform
liposuction under the guidance of a physician. By his representations, he performed
thousands of the procedures. At one point, Davis grew dissatisfied with the physician for
whom he worked and their professional arrangement, so he decided to establish a new
practice. To do so, Davis needed a physician to serve as his supervising physician. This
was required under section 3502 of the Business and Professions Code,1 part of the
Physician Assistant Practice Act (§ 3500.5, the Act), and California Code of Regulations,
title 16, section 1399.545. Davis found Dr. Jerrell Borup, who had been an
anesthesiologist for 18 years and had not practiced medicine for 12 years. Before
meeting Davis, Borup had never performed liposuction or other surgery. Borup agreed to
serve as “Medical Director,” although he would never perform a procedure at the new
practice. Borup’s role, in practice, consisted of reviewing charts. Davis, who gave
himself the title of “Director of Surgery,” would perform all of the liposuction
procedures. Davis opened his practice, Pacific Liposculpture, in September 2010.2
In 2015, the Physician Assistant Board (the Board)3 filed an accusation accusing
Davis of, among other things, the unlicensed practice of medicine, gross negligence,
repeated negligent acts, and false and/or misleading advertising. An administrative law
judge (ALJ) found the Board’s accusations were established by clear and convincing
evidence, and recommended the revocation of Davis’s license. The Board adopted the
ALJ’s findings and recommendations. Davis filed a petition for a writ of administrative
1 Further undesignated statutory references are to the Business and Professions Code.
2 The respondent Physician Assistant Board’s expert, Dr. Michael Sundine, testified that
there is no difference between liposuction and liposculpture, and that liposculpture was
“just a marketing term for liposuction.” We use the term liposuction, post.
3 The Board operates within the jurisdiction of the Medical Board of California.
(§3504.) The Board is authorized to adopt regulations to implement the Act. (§ 3510.)
2
mandamus seeking, inter alia, a writ compelling the Board to set aside its decision. The
trial court denied the petition.
On appeal, Davis asserts that the ALJ erred in finding that he committed the
various acts alleged, and that the findings are not supported by substantial evidence. He
further asserts that the discipline imposed—revocation of his license— constituted a
manifest abuse of discretion.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2015, the Board filed its accusation against Davis, accusing him of the
unlicensed practice of medicine, gross negligence, repeated negligent acts, false and/or
misleading advertising, dishonesty and/or corruption, failure to maintain adequate and
accurate medical records, and general unprofessional conduct.
Evidence Presented by the Board
Dario Moscoso
Dario Moscoso met Davis when they both worked at Advanced Lipo where Dr.
Kevin Calhoun was the physician owner. Davis performed liposuction procedures at
Advanced Lipo every day, Monday through Saturday. Moscoso ran the administrative
aspects of the office.
Calhoun never performed any of the liposuction procedures at that office, at least
as far as Moscoso observed. Davis told Moscoso that Calhoun “was incapable of doing
liposuction procedures. He did not have the knowledge and background and experience
to do them. And [Davis] was doing all of the procedures himself, essentially, without Dr.
Calhoun’s experience and supervision.”
Davis expressed unhappiness at working “for someone else that was making all
the money.” Davis was receiving a commission of 15 percent for each patient he treated.
Moscoso testified that Davis felt that arrangement was unfair and was unhappy working
under these conditions.
3
Davis and Moscoso decided to start their own company. Moscoso, as chief
financial officer, would handle the administrative, accounting, and marketing side of the
practice. Davis, as “director of surgery” and chief executive officer, would handle the
clinical side. Moscoso and Davis agreed that Davis would receive 70 percent of the
income and Moscoso would receive 30 percent. They discussed names for the company
and Davis came up with the name Pacific Liposculpture, Inc.
Davis and Moscoso also discussed the need for a medical director. According to
Moscoso, Davis “definitely didn’t want to have a doctor that was going to be meddling in
performing his procedures. He didn’t want a doctor involved in the day-to-day
procedures. He wanted to work autonomously and someone that would stay away . . .
from the office basically.” Moscoso posted an advertisement and received seven or eight
responses. Dr. Jerrell Borup was selected for an interview because he was retired and he
“didn’t have any background knowledge or experience with cosmetic surgery. He was
not a trained surgeon. And therefore, he would not be involved in the OR with” Davis.
According to Moscoso, at the first interview, Borup told them that he was not
interested in performing liposuction. Davis told Borup that “he was performing all the
lipo procedures himself and that he didn’t need any help in that regard. He didn’t need
anybody in the OR, and this would be more like a[n] off-site type of supervisory
experience.” After the interview, Davis “was happy. He said it was perfect. This is what
we needed, someone that is not going to be involved with the company, with the day-to-
day procedures.”
An e-mail referencing a training course for Borup that Davis sent to Moscoso
sometime after the first interview read, in pertinent part: “I sent Dr. Borup some info this
morning about the course but he didn’t reply back. I hope that he will be able to stick
with our system once has [sic] some knowledge. . . . I’m glad that we’re making a
contract that will allow for us to make immediate changes in that position if ever needed.
We don’t want another clumsy physician getting in the way.” According to Moscoso, in
4
referring to the “system,” Davis was referring to the structure that had been discussed in
the interview with Borup, whereby Borup would “stay away . . . from the company and
the daily operations.”
At a second interview approximately two weeks later, they discussed the
“structure” of the arrangement -- “that [Borup] basically could be away from the office
and should be away from the office, enjoying his retirement.” Davis offered Borup the
job of medical director. Moscoso testified that Davis selected Borup over another
candidate they interviewed because Borup “did not want to get involved in the day-to-day
operations of the company and [the other candidate] wanted to.” Initially, everyone
agreed Borup would receive 10 percent of the practice’s gross revenues. However,
before the practice issued its first check to Borup, the percentage was renegotiated to five
percent. Davis felt 10 percent was too much to pay Borup “for not doing anything.”
Pacific Liposculpture opened for business in September 2010.
Eventually, Davis took the responsibility for marketing away from Moscoso.
Davis created Borup’s biographical information for the website from Borup’s resume,
which appeared on the website under the heading, “ ‘Meet Our Medical Director.’ ”4
4 A version of the website appearing in the record, archived from February 11, 2011, had
a page entitled, “Meet Your Pacific Liposculpture Medical Director.” (Bold omitted.)
The page read: “Dr. Jerrell Borup is an accomplished board-certified physician with
more than 20 years experience. Dr. Borup, along with his highly trained liposculpture
team, will help to minimize your risks while offering you the best possible care all under
local anesthesia! Because of Dr. Borup’s advanced training and expertise in liposuction
technology, PacificLipo’s procedures significantly reduce pain, swelling and bruising,
while providing you with smoother results, tighter skin, permanent improvements, and no
unsightly scars. [¶] Formally, he has held the positions of Chief of Staff, Chief of
Anesthesia, and Chair of Quality Assessment at Cox Medical Centers. Dr. Borup has
also served as President of Ozark Anesthesia Associates in Springfield, Missouri. He is
highly published and has extensive experience in his field from his more than 30 years as
a United States Naval Captain. [¶] Dr. Borup supervises a team of highly trained
liposuctionists with a combined experienced [sic] of well over 10,000 lipo procedures.
Members of his team have participated in the liposculpture training of physicians and
5
Moscoso testified that Davis wanted to downplay the fact that Borup was not a plastic
surgeon. Moscoso further testified that, during his employment at Pacific Liposculpture,
Borup would come into the office once or twice a month at most, usually once a month.
Dr. Jerrell Borup
Dr. Borup testified that he had been a licensed physician in California since 1983.
He began his residency in anesthesiology in 1980, and he was board certified in
anesthesiology. He published one article, in 1983. As Borup described it, his publication
related to “the safety and efficacy of continuous spinal of anesthesia.” Borup testified
that he had not done a general surgical residency, but “did surgery during [his] internship
for a month and a half.” This internship took place in 1979 to 1980. When asked what
type of surgeries he performed, he testified, “[m]ostly assisted in surgeries and made
rounds and changed dressings and all the stuff - - work that interns would do.” Asked
again what type of surgeries he performed as an intern, Borup testified: “You don’t
actually do the surgery. You just hold the things for the surgeon to do the same. You’re
just observing to help him keep things out of his way.” Asked again whether he had
performed any of the surgeries, Borup responded, “No, no. Just learning.”
Borup held various anesthesiology positions between 1982 and 1998. In these
positions, he did not perform surgeries, but he did observe many. He testified that he
have authored several articles on various subjects from advanced lipo techniques to
health and wellness. Share your treatment goals with one of Dr. Borup’s specialists so
that you will gain the knowledge that one needs to make the most informed decision. [¶]
As Medical Director of Pacific Liposculpture, Dr. Borup offers patients a lifetime of
experience and knowledge in his state-of-the-art outpatient surgical center.” Versions of
the web page archived on September 2, 2011, August 19, 2011, and December 19, 2011,
contain identical descriptions. Another version, archived on June 23, 2012, differs from
this version minimally, stating that Dr. Borup’s team had performed a combined total of
more than 15,000 procedures, and describing Dr. Borup’s “training and expertise in
liposuction technology” rather than his “advanced training and expertise in liposuction
technology . . . .” (Italics added.)
6
performed general anesthesia for “hundreds” of patients during liposuction surgeries
between 1984 to 1998.
After practicing as an anesthesiologist for approximately 18 years, Borup suffered
a stroke. As a result, he did not practice medicine for 12 years, between 1998 and 2010.
In 2010, Borup joined the American Academy of Anti-Aging Medicine. Asked to
describe his experience in the anti-aging field at the time he began at Pacific
Liposculpture, Borup testified that he had been “going to meetings.” Borup went to
Florida for approximately six weeks of training. All of the training was “didactic, not
hands-on.” At the time of his meeting with Pacific Liposculpture, in August or
September 2010, he had “approximately two months’ experience in the anti-aging field,”
whereas, previously, all of his medical experience was in anesthesiology. At the time of
this meeting, Borup “was still waiting for [his] hands-on training” with regard to
surgeries. As of August 2010, he had not performed any “hands-on surgery.” After the
meeting, Borup attended a program specifically on liposculpture in September 2010. The
program “was about a week of video and didactic. And then at the end -- it was a
weekend -- two days of hands-on.” Borup performed two procedures during the weekend
course under the observation of “a teacher.” He did not describe the nature of the
procedures he performed, nor the background or training of the “teacher.”
Although prior to September 2010, he had not performed any liposuction
procedures, Borup did testify that the “flip side of that, actually, is when I was -- the
whole time I was an anesthesiologist, I used to put catheters in people’s backs and arterial
lines and central lines. So the idea of liposculpture is feeling tissue planes and knowing
what you’re doing. So I had a pretty good feel for that.” However, he then
acknowledged that he did not perform a single procedure at Pacific Liposculpture. The
full extent of Borup’s personal surgery experience with liposuction was his two-day
training session “and what [he] observed.”
7
Borup testified he originally intended to perform procedures if he obtained a
position at Pacific Liposculpture. However, once he saw what Davis did “and how many
he’d done,” things changed because Borup “could see how good [Davis] was.”
Borup started as supervising physician of Pacific Liposculpture on September 20,
2010. He also supervised another physician assistant at another practice who was “doing
cosmetic procedures” including Botox and fillers and lasers. He testified that he watched
Davis perform “10, 15” procedures, “mostly at first.”
Borup testified that the Medical Board investigated him for aiding and abetting the
illegal practice of medicine by Davis. At some point, Borup received a notice from the
Medical Board that the investigation had been closed, and he notified Davis.5 Other than
the foregoing testimony, the record does not establish the particulars of the investigation
or specifically what the Board was investigating.
Patient L.W.
Patient L.W. received liposuction from Davis on April 14, 2011. He found Pacific
Liposculpture online. When he spoke with an employee at Pacific Liposculpture, L.W.
learned that Davis, who was the “director of surgery,” would be performing the
procedure. L.W. believed at that time that Davis was a doctor, although the employee on
the phone did not specifically state that Davis was a doctor. L.W. assumed that a
“director of surgery” would be a doctor.
L.W. arrived at Pacific Liposculpture on the day of his procedure, paid his
outstanding balance, and was taken into another room. An assistant gave L.W.
paperwork to fill out, including an informed consent form. Someone went over the form
5 The letter from the Medical Board read simply: “The Medical Board of California has
concluded its review of complaint number 10 2010211037 alleging unprofessional
conduct. No further action is anticipated and the complaint file is closed. [¶] Thank you
for your cooperation in this matter.”
8
with L.W., and he felt he had sufficient time to complete the form. However, Davis did
not discuss with L.W. alternative treatments, risk of infection, blood clots, asymmetries,
pain, bleeding, poor wound healing, numbness, weight changes, or unhappiness with
results, even though entries on the operative summary said he did.
At some point, L.W. said something like, “ ‘Thanks, Doc,’ ” and Davis told L.W.
that he was not a doctor, that he was “a physician assistant with extreme experience and
over 10,000 procedures performed.” The revelation “stopped [L.W.] in [his] tracks for a
second, but [he] proceeded.” He said he proceeded because he was “pretty much . . . a
train somewhat in motion already,” and he felt comfortable with Davis’s friendliness.
Additionally, Davis told L.W. that “the facility was run and managed by a supervising
doctor,” a statement L.W. testified was important to going through with the procedure
because Davis was not a doctor.
L.W. lay down on the table and he was given a local anesthetic by injection.
Describing the procedure, L.W. testified: “what I recall was that it was very rough and
very hurried. And he’s kind of a big guy. And I was being moved about a lot and just --
I was in pain. And I was just moaning and groaning. [¶] And at some point I was given
more pain medication by injection, and the procedure went on. I -- I’d say it might have
been an hour and a half total. It was very grueling. [¶] Afterwards, he pretty much got
up and left. He seemed like he was in a hurry. The lady wrapped me in a garment and
kind of shooed me out the door, and that was pretty much the end of it. It wasn’t quite so
warm and fuzzy afterwards.” L.W. characterized the entirety of the procedure as “very
painful.”
Patient C.N.
Patient C.N. learned about Pacific Liposculpture from an advertisement and then
she visited the website. C.N. remembered seeing on the website that the medical director
had “20 years’ experience doing it.” C.N. testified that, “what led me to call was that
there was so many years’ experience and that it would . . . be done under local anesthesia.
9
That was one of my concerns, to not be put under; and basically, that he was the chief of
staff prior.” The website left C.N. with the impression that Dr. Borup was
knowledgeable in performing liposculpture.
An employee of Pacific Liposculpture told C.N. on the phone that the “individual
who would be performing the surgery had extensive training in this procedure; that . . .
the individual was a teacher of this procedure, had actually taught the procedure,”
although the employee never identified the individual who would be performing the
procedure. Based on the website, and the employee’s representations, C.N. believed that
the person who would be performing the procedure would be the person with 20 years of
experience.
In October 2011, C.N. arrived at Pacific Liposculpture and filled out paperwork.
Asked if she was given a consent form, C.N. responded: “I was. I think I was. I don’t --
I didn’t have much time to go over what I was given.” She estimated that 10 minutes
passed between when she was given the form and when she “went back to have other
stuff done.” She did not feel she had adequate time to complete the informed consent
form. And she did not read the entire document, although she did sign it. No one went
over the contents of the form with her.
Someone took C.N. into a back room, weighed her, told her the doctor would be
in, and exited the room. Davis then entered the room. C.N. testified that “he introduced
himself as the director of surgery.” Asked whether she knew at this time that Davis was a
physician assistant, C.N. responded that she believed he told her “at that time” that he
was “PA or physician assistant,” she could not recall which. The fact that Davis
indicated he was a physician assistant did not concern C.N. “because [she] thought this
guy that had 20 years of training was going to be the one doing [her] surgery.” She “was
under the impression [Davis] was going to be assisting in the procedure or at least
overlooked by Dr. Borup.” And by the time she realized the doctor was not going to
10
show up, she “was already getting cut open in the surgery room.” However, she still
believed “he would be stepping in.”
C.N. was nervous about her tachycardia, and so before going into surgery, she
asked Davis about that.6 Davis told her she would be fine; he did not ask about any
family history of heart problems, and he did not indicate any desire to consult with C.N.’s
cardiologist. Davis spent five minutes with C.N. prior to commencing the procedure.
In the surgery room, Davis gave C.N. injections to numb the site and then made
four incisions. Although C.N. had been told that the procedure would be painless, it was
not. C.N. told Davis that it felt like something was wrong, that she was in pain, and that
she “could feel everything he was doing.” Davis told C.N. that he would administer more
medication. C.N. felt pain for the duration of the procedure. On a scale of one to ten,
C.N. characterized the pain she experienced as a nine. The procedure lasted
approximately 45 minutes. No one else was ever in the surgery room with C.N. and
Davis “until the very end.”
C.N. called Pacific Liposculpture over the following days to report that she was
experiencing a lot of pain, and that “something didn’t feel right.” Davis told C.N. that
she was fine, that everything would be okay, and that she needed to calm down. Davis
also told C.N. that she was “over-exaggerating.”
At no point did Davis tell C.N. he would consult with a supervising physician or
medical director. C.N. never met Dr. Borup.
Patient K.D.
Patient K.D. underwent liposuction at Pacific Liposculpture in March 2012. She
had visited the Pacific Liposculpture website and “was very impressed. I liked that he
had 20 years’ experience; that he was the chief of staff, chief of anesthesia.” Nothing
6 C.N. did not note this condition on the form she filled out which included a field for
ongoing medical problems.
11
about the website suggested to K.D. that anyone other than a doctor would perform the
procedure. Similarly, in the telephone conversations she had with an employee at Pacific
Liposculpture, K.D. was not told anything that would make her believe that anyone other
than a doctor would perform the procedure.
When K.D. arrived at Pacific Liposculpture, she was given papers to fill out
including an informed consent form. She had less than five minutes to complete the
form, which she did not think was enough.
K.D. was then taken into another room and instructed to remove her clothes, put
on a gown, and wait. No one had explained to her by this point what the procedure
would involve, the nature of the risks involved, or who would perform the procedure.
Davis came into the operating room, introduced himself by name, and told K.D.
that he was going to give her a local anesthetic and begin the procedure. Davis did not
state what his title was, and, at this point, K.D. believed that he was a doctor. Contrary to
entries on the operative summary, Davis did not discuss with K.D. anything about blood
clots, bleeding, infection, or any of the other risks mentioned in the summary.
K.D. experienced pain during the procedure. When Davis began working near
where K.D. had scar tissue from a previous surgery, it hurt “a lot.” K.D. told Davis, and
he replied by saying he would administer more anesthetic, which he did “many times.”
K.D. went back for a second procedure the following day. She still had no reason
to believe that Davis was not a doctor. Once again, Davis did not discuss the potential
risks and complications that appear on the operative summary.
K.D. was again taken into the operating room, Davis came in, and he started
K.D.’s second procedure. K.D. experienced pain during the second procedure.
No one was present during either procedure other than K.D. and Davis. K.D. did
not see a doctor during either procedure. Asked if she knew whether someone was
supposed to supervise Davis’s work, K.D. responded, “I thought he was the doctor.”
12
K.D. acknowledged that no one told her that Davis was a doctor, but she also testified
that, at the relevant times, she thought Davis was Dr. Borup.
After K.D. went home following the second procedure, she contacted Pacific
Liposculpture because she was experiencing pain which she characterized as an “eight or
a nine.” When K.D. notified Davis of the pain she was experiencing, he called her a
“drug seeker.” Davis told K.D. that “none of his other patients had any kind of pain
afterwards and that he did not believe” her. Davis told K.D. to go see her doctor; he did
not tell K.D. he had a supervising physician or suggest a consultation with that physician.
K.D. discovered that Davis was not a physician approximately one month after her
procedures. Asked whether or not she would have gone through with either procedures
had she known Davis was not a doctor, K.D. answered, “Absolutely not.” When asked
why not, she stated, “Because he’s not a doctor and he’s not a surgeon.”
Patient S.M.
Patient S.M. had liposuction at Pacific Liposculpture in April 2013. S.M. was
familiar with Pacific Liposculpture because she was seeing an aesthetician who rented
space in the same office. She was also familiar with Davis, having seen him around the
office. On at least one occasion, S.M. heard “girls in the office” refer to Davis as “Dr.
Rod.” S.M. believed Davis was a doctor. S.M. researched Pacific Liposculpture on the
website as well as on Facebook and Yelp. S.M. saw at least one reference to “Dr. Rod”
on Yelp or Facebook.
Davis performed the procedure on S.M. on April 17, 2013. Upon her arrival at the
office, S.M. was given the informed consent form. S.M. had about 10 minutes to review
the form, which she did not feel was sufficient. S.M. signed the form even though she
did not read it through.
S.M. testified that at the time of the procedure, she knew Davis’s title was
“director of surgery,” but she did not know whether he was a doctor, a physician
13
assistant, or something else.7 S.M. did not believe Davis discussed with her any of the
risks that are described on the informed consent form or the risks listed on the procedure
note.
Davis administered a medication in pill form, and then he began to numb S.M.’s
thighs. As S.M. recalled, the numbing process hurt more than the actual procedure. She
did not recall experiencing pain during the procedure. S.M. never met Dr. Borup.
Approximately five weeks after the procedure, a sack of fluid formed on S.M.’s
right thigh. S.M. discussed the development with Davis at a follow-up appointment.
Davis told S.M. that the condition was normal, and that she had nothing to worry about.
He told her that it would go away. He did not offer S.M. the option of seeing a
supervising physician or the medical director. As time passed, the swelling did not
dissipate and it grew harder. S.M. contacted Davis again the following month and sent
him photographs. Davis called in a prescription to S.M.’s pharmacy, and she took the
medication. Thereafter, S.M. communicated to Davis that the swelling had not
diminished and that it was “very hard.” Additionally, a bruise had formed at the site of
the swelling. S.M. grew concerned that she might have a seroma that could require
7 According to a report completed by an investigator working on behalf of the State of
California Department of Consumer Affairs, Division of Investigation, Health Quality
Investigation Unit, S.M. said she knew Davis was a physician assistant, not a doctor,
from reviewing Pacific Liposculpture’s website. According to this report, S.M. had said
she was confident in Davis’s ability to perform the procedure even though she knew he
was not a doctor. In her testimony before the ALJ, S.M. testified that she did not tell the
investigator that she knew Davis was a physician assistant. S.M. testified that she read
the investigator’s summary, and “there were some other things in there that were not
exactly correct; that I’m not sure if he misunderstood what I said or -- but when I read
through his -- his report, I was like, ‘Oh, that’s -- that’s not right, or he got that a little
wrong as well.’ [¶] So there are some discrepancies other than what you’re saying in
that report.” The ALJ noted these discrepancies in her decision. We also note that before
S.M. spoke to the investigator, she told Dr. Munish Batra, a plastic surgeon with whom
she consulted, that she thought Davis was a doctor and referred to Davis as Doctor Rod
Davis. We summarize Dr. Batra’s testimony and report, post.
14
additional surgery if it was not drained. She again contacted Davis. Again, Davis did not
offer to have her seen by a supervising physician or medical director.
S.M. went to her primary care physician, who had an ultrasound performed and
then referred S.M. to Dr. Munish Batra. S.M. testified that Dr. Batra diagnosed the
condition on her right thigh as a pseudobursa.8 Dr. Batra informed S.M. that surgery was
required to remove the pseudobursa, and that it would leave a scar and possibly an
indentation. S.M. also had Dr. Batra look at her left thigh. Dr. Batra told S.M. that her
“left thigh had been over-suctioned, and it was going to require a . . . fat transfer or fat
graft or something like that to fix that.”
S.M. testified that Dr. Batra asked who performed the liposuction procedure, and
she responded that “Dr. Rod Davis” performed the procedure. Dr. Batra had not heard of
him. S.M. and Dr. Batra looked at Pacific Liposculpture’s website, and Dr. Batra said, “
‘Oh, my god. You had a physician assistant do your liposuction,’ ” and explained that a
physician assistant is not a doctor. As of the time of her testimony, S.M. had not had the
cosmetic repairs performed because she could not afford to pay for the procedure.
S.M. testified that she found Davis’s title—“director of surgery”—to be
“extremely misleading.” S.M. did not realize that, in California, someone could have that
title when the person is not even a surgeon. She explained, “To me, any initials after his
8 Davis’s expert described a pseudobursa: “So when you do a procedure like
liposuction, one of the risks is a development of a fluid collection that is called a seroma,
which is the protein in blood can leak out through the tissues and cause a localized fluid
collection called a seroma -- serum. [¶] And if that seroma is drained and it keeps
coming back and back and back, what happens is a tissue on the inside that’s making the
fluid forms a shiny capsule, which is a mature kind of immunologic response; that once it
forms, it no longer responds to simple aspirations and compression or steroids so that
once you get a bursal or what we call a pseudobursal cavity, then the only way to treat the
fluid that’s being made as a result of a pseudobursal cavity is to actually operate and
remove the capsule within the cavity.”
15
name -- PA, I didn’t know what that meant. But director of surgery sounds like
somebody who’s a doctor and somebody who’s performing surgeries on people.”
Dr. Munish Batra
Dr. Batra is board certified in plastic surgery and reconstructive surgery. He
testified that “[m]ost of [his] practice is esthetic surgery, breast and body work.”
Although he did not testify at Davis’s hearing, Dr. Batra gave a deposition and wrote a
report, both of which were received into evidence. It was his complaint that started the
investigation underlying the instant allegations against Davis.
Dr. Batra examined S.M. on September 11, 2013. In his report, under the heading
“Physical Examination,” he wrote: “Examination today reveals the patient has obvious
pseudobursal cyst on the leg. The patient was told that this would require an excision
with a resulting scar.” (Capitalization and bold omitted, italics added.) He testified that
the pseudobursae had been “completely misdiagnosed” by Davis.
Regarding S.M.’s pseudobursae, Dr. Batra testified, “it looks like hell.” He
explained, “you can get a pseudobursae even in cases where liposuction’s done
appropriately. But you should be able to recognize that this is a pseudobursae and treat
it.” He further explained, a pseudobursae “should be treated right away” and if it is not,
surgery is required. The cost for surgery would have been $11,500, but S.M.’s insurance
did not cover it.
Dr. Batra testified that when he first saw S.M., she said she thought Davis was a
doctor and knew him as Doctor Rod. Because Batra had not heard of a Dr. Davis, he and
S.M. looked him up on the Internet and noted that the website said Davis was a physician
assistant, not a physician. Thereafter, he called Pacific Liposculpture, spoke briefly with
Davis, and told Davis to have his supervisor contact him. Borup returned the call and
Batra admonished him about letting a physician assistant do liposuction procedures
“[u]nless you have a plastic surgeon who is experienced in liposuction . . . .”
16
The Board’s Expert — Dr. Michael Sundine
Dr. Michael Sundine, who had been practicing medicine since 1987, testified as
the Board’s expert.
Sundine opined that, as a physician assistant, Davis was not competent or qualified
to perform liposuction surgery. During the course of his plastic surgery residency,
Sundine never learned of a situation where a physician assistant performed liposuction
surgery without supervision. He testified that Davis violated the applicable standard of
care during the relevant time periods by performing liposuction surgery.
Sundine’s opinion was that someone performing liposuction surgery should be, at
a minimum, “either an MD or a doctor of osteopathy,” and should be board certified in
one of the recognized surgical specialties.9 Measured against this standard, Sundine
opined that Davis’s qualifications were lacking because he was not an MD or a doctor of
osteopathy, he had not been board certified, and he had been trained by a radiologist.
Sundine opined that Davis lacked the education, training, and experience to perform
liposuction surgery. Further, Sundine opined that Dr. Borup did not meet the minimum
qualifications for performing liposuction surgery and that Pacific Liposculpture “was set
up so that [Davis] absolutely did function autonomously.” Sundine believed that, in
performing liposuction surgeries, Davis engaged in the unlicensed practice of medicine.
Sundine testified that it was his opinion that Davis violated the applicable standard
of care by using the title “director of surgery.” Asked whether it was standard in the
medical community for a physician assistant to identify as a director of surgery or chief
of surgery, Sundine testified: “I’ve never heard any of it at any of the hospitals that I’ve
been at.” Sundine testified that a director of surgery should be, at the least, a medical
9 Dr. Sundine further explained that plastic surgeons are trained in liposuction, but “[i]f
you’re not a plastic surgeon, then there are alternative pathways that people can do that,
such as taking extended courses, along with cadaveric kind of experiences.”
17
doctor and typically skilled in the field of surgery. He opined it was misleading for a
physician assistant to identify as a director of surgery because “it tries to bestow
credentials that I don’t think they will have.” A physician assistant using that title
implies he or she has more experience and education than he or she actually has.
Sundine testified that Davis also violated the applicable standard of care regarding
“appropriate and adequate informed consent” in his use of the informed consent forms.
One version of the informed consent form used by Pacific Liposculpture stated: “I
hereby authorize Dr. Jerrell Borup, MD, Rod Davis, PA, and such assistants as may be
selected to perform the procedure or treatment.” Sundine testified that, on the forms,
“there’s this kind of hint that Dr. Borup . . . really is the person who’s doing it or
supervising it or is directly there. I think it’s very misleading.” Describing another way
in which he believed Davis violated the duty of care regarding informed consent, Sundine
testified: “informed consent’s a process, and it’s a process that takes a long time. You
know, it really includes a really thorough discussion of the risks and complications of the
procedures. [¶] And from reading some of the complaints, it’s -- it seems like these
patients was [sic] asked to sign a form and whisked back to surgery. And it doesn’t seem
-- and I believe that they actually said that they really didn’t have a lot of time prior to the
procedure, the surgery. [¶] And in that regard, I think that probably that the informed
consent process wasn’t adequate.” Sundine opined that the applicable standard of care
regarding informed consent required the practitioner to actually discuss the matters with
the patient.
18
Sundine reviewed the case file of a patient who developed a seroma.10 Sundine
opined that Davis’s initial management of the seroma was appropriate.11 However,
Sundine further opined that “the later management -- I think he needed to be more
aggressive about trying to deal with that.” He testified that, beyond “a couple weeks . . .
you want to start thinking that you might need to do something else.” Sundine further
opined that, when more aggressive management was called for, a physician assistant
should bring the matter to the attention of a supervising physician. It did not appear that
Davis did so, and Sundine believed that this failure violated the applicable standard of
care. In his report, Sundine noted that a seroma is a potential complication of liposuction,
and is listed in Davis’s informed consent document. Sundine stated that it was
“amazing” that Davis “did not recognize the seroma which could have been easily
diagnosed with an ultrasound or something as simple as a needle aspiration.” Sundine
further stated: “By failing to treat the seroma early the patient will now require excision
of the pseudo-bursa as proposed by Dr. Batra and will also likely need fat transfer to the
right medial thigh as well.” Sundine characterized Davis’s performance as an “[e]xtreme
departure.”
Evidence Presented by Davis
Davis’s Testimony
Davis testified that he attended a physical therapy graduate program at Touro
College on Long Island. He was in the master’s program for one year, and then
transferred to the physician assistant program, upon completion of which he received
10 At this point in Sundine’s testimony, he did not specifically identify S.M. as the
patient being discussed. However, it is clear from his testimony that he is referring to his
review of S.M.’s file. Davis does not contend otherwise.
11 Dr. Borup also testified that he did not disagree with Davis’s initial treatment of S.M.,
characterizing it as “conservative care.” He testified that seromas usually spontaneously
resolve when the fluid reabsorbs.
19
“another bachelor of science degree.” After obtaining his degree, Davis in 2002 took a
board certification exam, after which he worked in an orthopedic surgery clinic in
Brooklyn. While working there, Davis was also “moonlighting” at the emergency room
at Good Samaritan Hospital. After about a year, Davis began working with another
orthopedic surgeon group. He continued to work in the emergency room as well for
another two years. With the new orthopedic group, Davis worked in the operating room
assisting with surgeries.
In 2007, Davis relocated to Beverly Hills to begin training with Dr. Craig Bittner.
He applied for his California physician assistant license as soon as he was offered the job.
After arriving in California, Davis learned that the Board rejected his license application
“due to not being truthful on their application . . . .” Davis testified that the issue related
to a question on the application asking if the applicant had ever been convicted of any
crime. Davis had answered no. He learned from the Board that “something came up
from 1992” on his background check, something he failed to disclose on the application,
an omission the Board found to be dishonest. He testified that the issue related to an
incident when he was 18 and working at a gas station in New Jersey, and he and a friend
“started skimming money for beer,” eventually taking approximately $100 by the time he
was caught. He further testified he did not realize he had suffered a conviction; he
thought he just had to sign a form and “it would be as if it never happened.” Davis called
the procedure a “pretrial intervention program” or “PTI.” He also may have had to pay a
fine. Davis communicated with the Board and was offered the choice of a probationary
license or appealing the Board’s decision, which could take a year. Davis accepted the
probationary license, with a three-year probationary term.
Once Davis’s license was in place, Dr. Bittner became his supervising physician.
On cross-examination, Davis acknowledged that Bittner was not a plastic surgeon, but
rather was an “interventional radiologist” “trained to do minor surgical procedures . . . .”
He learned how to do liposuction from Dr. Bittner, working at Bittner’s office from
20
October 2007 to September 2008. Davis estimated he performed “several thousand”
procedures while he was employed there.
Eventually, Davis decided to look for another job performing liposuction. He
began working for Dr. Calhoun in April 2009, and performed liposuction procedures by
himself out of both of Calhoun’s San Diego offices. He estimated that he saw three or
four patients each day.
Moscoso was the office manager at Calhoun’s office. Davis and Moscoso
complained to each other about Calhoun. At some point, one of Davis’s paychecks
bounced, and Davis had a heated discussion with Calhoun. After that, Moscoso, who had
witnessed the argument, pulled Davis aside and told him that Davis was the one doing all
the work and that there were other physicians who would be happy to have Davis.
Moscoso asked Davis if he wanted him to look into the possibility, and Davis agreed.
Davis left Calhoun’s office in August 2010.
Davis and Moscoso decided to establish a management services organization
(MSO). Eventually, Pacific Liposculpture in La Jolla was up and running. Davis
testified that the structure included three organizations: “There was the medical practice,
which Dr. Borup was 100 percent shareholder of. There was the [MSO], which
[Moscoso] and [Davis] were shareholders of. And then there was basically [Davis] as an
independent contractor who was being -- I don’t know if hired is the right word -- but
hired by Dr. Borup’s medical practice to perform its medical procedures.” According to
Davis, the purpose of the MSO was the “management of all things not lipo.”12 Davis
further described the MSO: “Everything that a physician would need to come into an
office on a turnkey basis without having to worry about those things himself is the
12 Eventually, following “a big blowup fight,” Davis and Moscoso realized they could no
longer work together. They each found attorneys and proceeded with a buyout
negotiation.
21
function of the MSO.” Davis testified that, in setting up Pacific Liposculpture, he
consulted the California Physician’s Assistant’s and Supervising Physician’s Handbook,
authored by attorney Michael Scarano, who had been General Counsel to the California
Academy of Physician Assistants.13
Davis and Borup entered into a delegation of services agreement, which included
certain protocols and by which Borup authorized Davis to perform specified services,
including the administration of local anesthesia and sedation and liposuction
procedures.14 Dr. Borup was approved as Davis’s supervising physician by Davis’s
probation monitor, which we discuss in greater detail post.
Davis testified on cross-examination that Borup’s “specialty” was liposuction
surgery, although Davis conceded it “was a new specialty for him . . . .” The relevant
training and experience on which Davis relied in concluding that liposuction surgery was
Borup’s specialty consisted of the weekend course Borup took and having performed two
procedures as part of the course.
Asked if he wanted Dr. Borup to be involved in performing liposuction on
patients, Davis responded: “I preferred to be the primary provider of lipo.” When he was
13 We set forth passages from the handbook Davis relied upon, post.
14 At all times relevant here, section 3501 defined a “delegation of services agreement”
as follows: “ ‘Delegation of services agreement’ means the writing that delegates to a
physician assistant from a supervising physician the medical services the physician
assistant is authorized to perform consistent with subdivision (a) of Section 1399.540 of
Title 16 of the California Code of Regulations.” However, that section was recently
amended and now provides: “ ‘Practice agreement’ means the writing, developed
through collaboration among one or more physicians and surgeons and one or more
physician assistants, that defines the medical services the physician assistant is authorized
to perform pursuant to Section 3502 and that grants approval for physicians and surgeons
on the staff of an organized health care system to supervise one or more physician
assistants in the organized health care system. Any reference to a delegation of services
agreement relating to physician assistants in any other law shall have the same meaning
as a practice agreement.” (§ 3501, subd. (k), as amended by Stats. 2019, ch. 707, § 2.)
22
asked if he made this clear to Borup, Davis replied: “We had a couple of discussions
about it. And the way that I phrased it was, ‘I want to get things off the ground. Let me
get this going, of course, under your supervision. But I know that we need to have good
photos on the website. We need to have good reviews.’ ” As the practice got underway,
Davis wanted to “ ‘get some good results.’ ” Davis felt very confident that he could do it.
He testified that there was “always this promise floating in the air that one day after [he]
got some of these procedures under our belts and we had a good reputation going that we
would then start to do more stuff together.” However, Davis noted that patients would be
coming to the practice having seen photographs of results achieved by him, not Dr.
Borup. Therefore, “it seemed more straightforward to just have the person whose work is
displayed on the site” perform the procedures. He explained: “I think we can avoid more
problems by making sure we stayed consistent with that versus having Dr. Borup . . .
practicing on people just for the sake of practicing and maybe ending up with some 19-
year-old woman who’s very upset with some results because she looked at photos and
thought that she was going to get something similar to what was in the photos rather than
a doctor who was . . . just practicing just to practice.” Davis was concerned that Borup
was not as skilled when it came to the artistic aspect of the liposuction procedures. “He
could do a procedure safely. . . . But making sure that everything looked smooth and the
patient’s happy, that’s -- I thought I would be better at that part.” Davis testified on
cross-examination that he knew he could do a better job and achieve nicer-looking results
than Borup. And he admitted that he did not want Borup performing any procedures.
With regard to his informed consent forms, Davis testified that he essentially just
copied what had been used in Dr. Calhoun’s practice. He also testified he discussed the
common risks with all patients.
Davis provided the employees at Pacific Liposculpture with a list of common
questions and prepared responses to help them address patient questions. The first
question among these was, “Who does the procedure?” The prepared response was:
23
“Rod Davis is our Director of Surgery and he performs all of our procedures. He is
nationally certified and specializes in liposculpture. He has performed over 10,000
procedures, more than most physicians. Our office has a perfect safety record, not even
an infection, and we have never experienced a serious complication. Rod is licensed in
both California and New York. [¶] Dr. Jerrell Borup is the Medical Director and has
been a board certified physician for 25 years.” (Underlining and bold omitted, italics
added.)
Davis testified that, at some point, he learned the Medical Board or the Physician
Assistant “committee” was investigating the possible illegal practice of medicine at
Pacific Liposculpture. He eventually received a one or two sentence letter indicating that
the investigation was being closed and no wrongdoing had been found. After the
investigation was closed, Davis “felt like we had been put through the most intense
scrutiny possible to determine whether or not what we were doing was proper. And
finally, I felt like we could breathe easier at that point knowing that what we’re doing has
been checked out. I even felt like it was probably a good thing that the complaint came
so that we could make sure that it’s okay.” No evidence was offered concerning the
scope or particulars of this investigation.
With regard to patient S.M., Davis testified that she appeared for a follow-up visit
on May 1, 2013. He gave her a smaller-size compression garment than what she had. He
did not attempt to drain the swelling because it “was still firm to palpation. When I
pushed on the area, it was not that fluid wave that you would like before you stick a
needle into the area.” Davis had dealt with seromas in the past, and he felt sufficiently
comfortable and knowledgeable to deal with S.M.’s swelling. He did not feel that he
needed Dr. Borup’s assistance. Davis testified that, contrary to S.M.’s testimony, she
came to the office on June 25, 2013. He still opted not to drain the swelling because “it
was still firm.” He believed that S.M. had either a dissolving seroma or possibly swelling
resulting from a compression garment that was too tight. He instructed S.M. to remove
24
the compression garment and increase massage in the area. At some point, he advised
S.M. to get a second opinion.
Davis’s Expert—Dr. Terry J. Dubrow
Dr. Terry J. Dubrow, a board certified plastic surgeon, testified on behalf of Davis.
Dubrow disagreed with Sundine’s conclusion that Davis was not competent to perform
the liposuction procedures detailed in his reports. Dubrow testified: Davis “does nothing
but liposuction and does a tremendous amount of it. And although I don’t see all of the
complications he’s had, if these are representative of his complications, they are
extraordinarily minor. [¶] And in fact, three of these patients don’t have any
complications, in my opinion.”
Dubrow opined that it was reasonable for Davis to have the title “director of
surgery.” Based on what Davis did day-to-day, Dubrow thought it was not misleading
for Davis to hold the title “director of surgery.” Asked whether the title could potentially
lead people to think Davis was a doctor, Dubrow testified “not necessarily,” but “it
could.” Dubrow testified that seven to eight years prior, the director of surgery at UC
Irvine was a nurse. He was also aware of nonphysicians at other unspecified facilities in
California who were listed as director of surgery, all of whom were nurses.
Asked if it was reasonable for Davis, a physician assistant, to do liposuction
procedures under Dr. Borup, Dubrow responded: “Yes. Provided that Dr. Borup was
familiar with liposuction and had a reasonable background in liposuction.” Considering
Dr. Borup’s relevant background and experience, Dubrow testified that it would be
reasonable, given Davis’s experience performing liposuction, for Dr. Borup to be Davis’s
supervising physician. Dubrow suggested that the training courses Borup attended
provided him with the understanding he needed to supervise someone who performs
many liposuction procedures.
With regard to patient S.M., Dubrow testified that the only way to appropriately
diagnose a pseudobursa is to aspirate to see whether the fluid returns to the area. Dubrow
25
“couldn’t figure out why when [Dr. Batra] made a diagnosis of a fluid collection that he
didn’t immediately put a needle in it and ascertain whether it was blood or serous fluid
and start treating.”15 Dubrow did not agree with Batra’s recommendation of immediate
surgery for a fluid collection before making a diagnosis. He also did not agree that S.M.
had a pseudobursa. Dubrow opined that it was reasonable for Davis to continue to have
S.M. wear a compression garment on her right thigh as of May 1, 2013, to treat the
residual swelling in the area. He further testified that, based on the patient’s status as of
May 29, 2013, compression and massage is what he would recommend.16 Dubrow
testified that Davis was managing S.M.’s circumstances with her right thigh, with more
compression and massage, “[p]erfectly.” Dubrow also testified that, when Davis told
S.M. she should go for a second opinion if she was still having doubts, his actions were
reasonable. Dubrow did not believe Davis waited too long before suggesting that S.M.
go for a second opinion, particularly in light of the fact that her condition had improved
with Davis’s “conservative therapy.” Dubrow testified that Davis’s treatment of S.M.
was acceptable, conservative, common, and within the standard of care.
On cross-examination, Dubrow acknowledged that, if a practitioner did not discuss
potential risks of a procedure with patients, did not present educational videos about
those risks, and the patients did not have sufficient time to review the informed consent
form which outlined the risks, this would constitute a breach of the standard of care.
15 In his deposition, Dr. Batra testified he spoke with Dr. Borup over the phone to inform
him of what had happened with S.M. He told Borup he was not going to treat S.M.’s
pseudobursae because her insurance would not pay for it and admonished Borup he
should have someone available to deal with this complication.
16 As noted, Dr. Batra examined S.M. on September 11, 2013.
26
The Board’s Decision
The Board submitted its decision and order dated May 13, 2016, to be effective
June 10, 2016, adopting the proposed decision of the ALJ, revoking Davis’s physician
assistant license. The ALJ concluded that cause existed under sections 3527 and 2234,
and California Code of Regulations, title 16, section 1399.521, subdivision (d), to impose
discipline on Davis’s license because clear and convincing evidence established that
Davis: (1) engaged in the unlicensed practice of medicine; (2) was grossly negligent in
his post-operative treatment of S.M. in violation of section 2234, subdivision (b); (3)
engaged in repeated acts of negligence in his care and treatment of L.W., C.N., K.D., and
S.M. in violation of section 2234, subdivision (c); (4) disseminated false and misleading
advertising in violation of section 651, subdivisions (a), (b), and (e), and section 2271; (5)
engaged in acts of dishonesty in violation of section 2234, subdivision (e), when he
disseminated false and misleading advertising; and (6) engaged in conduct that breached
the rules or ethical code for physician assistants and which was unbecoming of a
physician assistant. The ALJ found that cause for discipline was not established for other
charges.17
With regard to discipline, the ALJ concluded: “[u]nder the totality of the
circumstances presented, the public would not be protected if [Davis] were to retain his
license. Careful thought and deliberation was given to alternate disciplinary measures;
however, the cumulative nature of [Davis’s] conduct, his intentional scheme to
circumvent the rules and regulations governing physician assistants, and consideration of
17 The ALJ concluded there was insufficient evidence to establish that Davis failed to
maintain adequate and accurate medical records in violation of section 2266 and that he
engaged in an extreme departure from the standard of care in his care and treatment of
patients L.W., C.N., and K.D. in violation of section 2234, subdivision (b).
27
the overriding concern for public safety require this result. Revocation is the only
appropriate measure of discipline that will protect the public.”
Proceedings in the Trial Court
Davis filed a petition for a writ of administrative mandamus seeking, inter alia, a
writ compelling the Board to set aside its decision.
In a tentative ruling, the trial court ruled that each of the ALJ’s and the Board’s
determinations were supported by the weight of the evidence. The court also rejected
Davis’s contention that revocation of his license was excessive and unduly punitive and
constituted a manifest abuse of discretion. The trial court concluded: “The factual
findings cited to support the level of discipline imposed are supported by the weight of
the evidence. The Court finds that reasonable minds could differ over the
appropriateness of the penalty imposed premised upon those findings. Therefore, Davis
has not shown a manifest abuse of discretion by [the Board] in revoking his license.”
Following oral argument, the court stated: “Here is your difficulty: This isn’t just
an individual who is doing something wrong, this is an individual who went into the
practice with the intent to essentially deceive the public and to avoid compliance with the
statutes and the regulations. That is what comes across in the record. So it’s not just
doing something wrong, it’s doing something very seriously wrong with an intent to
basically avoid compliance with the law.” After additional remarks from Davis’s
counsel, the trial court affirmed its tentative ruling denying the petition.
In an order filed February 24, 2017, the trial court affirmed its tentative ruling,
denying Davis’s petition for a writ of administrative mandamus and damages. A
judgment entered the same day in favor of the Board denied the petition.
DISCUSSION
I. Standard of Review
“A writ of administrative mandate is available ‘for the purpose of inquiring into
the validity of any final administrative order or decision made as the result of a
28
proceeding in which by law a hearing is required to be given, evidence is required to be
taken, and discretion in the determination of facts is vested in the inferior tribunal . . . .’ ”
(Kifle-Thompson v. State Bd. of Chiropractic Examiners (2012) 208 Cal.App.4th 518,
523 (Kifle-Thompson), quoting Code Civ. Proc., § 1094.5, subd. (a).) “Under Code of
Civil Procedure section 1094.5 judicial review of a final administrative decision ‘shall
extend to the questions whether the respondent [agency] has proceeded without, or in
excess of, jurisdiction; whether there was a fair trial; and whether there was any
prejudicial abuse of discretion. Abuse of discretion is established if the respondent
[agency] has not proceeded in the manner required by law, the order or decision is not
supported by the findings, or the findings are not supported by the evidence.’ ” (Fisher v.
State Personnel Bd. (2018) 25 Cal.App.5th 1, 13, quoting Code Civ. Proc., § 1094.5,
subd. (b).)
“When it is claimed the findings are not supported by the evidence, and the trial
court, as here, is authorized by law to exercise its independent judgment on the evidence,
‘abuse of discretion is established if the court determines that the findings are not
supported by the weight of the evidence.’ [Citation.] In such a case our review on appeal
is limited. We will sustain the trial court’s findings if they are supported by substantial
evidence. [Citations.] In reviewing the evidence, we ‘resolve all conflicts in favor of the
party prevailing in the superior court and must give that party the benefit of every
reasonable inference in support of the judgment.’ ” (Kifle-Thompson, supra, 208
Cal.App.4th at p. 523; accord Pasadena Unified Sch. Dist. v. Commission on
Professional Competence (1977) 20 Cal.3d 309, 314; see Fukuda v. City of Angels (1999)
20 Cal.4th 805, 824 [“Even when, as here, the trial court is required to review an
administrative decision under the independent judgment standard of review, the standard
of review on appeal of the trial court’s determination is the substantial evidence test.”].)
Where the trial court essentially rejects the petitioner’s contention that the
administrative agency’s findings were not supported by the evidence, and, in doing so,
29
effectively adopts the administrative agency’s findings, it is the administrative agency’s
findings we must examine to determine whether they are supported by substantial
evidence. (Kifle-Thompson, supra, 208 Cal.App.4th at p. 524.)
II. Physician Assistants
The Legislature established a statutory scheme for physician assistants out of
“concern with the growing shortage and geographic maldistribution of health care
services in California . . . .” (§ 3500.) The legislative purposes of this statutory scheme
include: “to encourage the effective utilization of the skills of physicians and surgeons,
and physicians and surgeons and podiatrists practicing in the same medical group
practice, by enabling them to work with qualified physician assistants to provide quality
care”; “to encourage the coordinated care between physician assistants, physicians and
surgeons, podiatrists, and other qualified health care providers practicing in the same
medical group, and to provide health care services”; and “to allow for innovative
development of programs for the education, training, and utilization of physician
assistants.” (Ibid.)
A person may not practice as a physician assistant unless licensed. (§ 3503.) To
become licensed, a physician assistant must complete an approved program and pass a
written examination administered by the Board. (§§ 3517, 3519.) According to the
version of section 3502 effective at the time Davis worked with each of the patients here
with the exception of S.M.,18 “Notwithstanding any other provision of law, a physician
18 By the time Davis worked with S.M. in April 2013, and when the Board filed its
accusation against Davis in February 2015, subdivision (a) of section 3502 had been
amended again, but not in such a way as to affect our discussion of that section here.
That amendment to subdivision (a) only clarified that the regulations mentioned were
those “adopted under this chapter,” and specified that the board referred to was the
“Medical Board of California.” (Stats. 2012, ch. 332, § 27.) By the time of the trial
court’s determination, yet another amendment to subdivision (a) added the provision:
“The medical record, for each episode of care for a patient, shall identify the physician
30
assistant may perform those medical services as set forth by the regulations of the board
when the services are rendered under the supervision of a licensed physician and surgeon
who is not subject to a disciplinary condition imposed by the board prohibiting that
supervision or prohibiting the employment of a physician assistant.” (§ 3502, former
subd. (a), as amended by Stats. 2007, ch. 376, § 2.)19 The regulations further provided:
“A physician assistant may only provide those medical services which he or she is
competent to perform and which are consistent with the physician assistant’s education,
training, and experience, and which are delegated in writing by a supervising physician
who is responsible for the patients cared for by that physician assistant.” (Cal. Code
Regs., tit. 16, § 1399.540, subd. (a).)
A physician assistant renders services under the supervision of a licensed
physician under a practice agreement that meets certain requirements, also referred to as a
delegation of services agreement (DSA). (§§ 3502, subd. (a)(1), (2), 3502.3, 3501, subd.
(k).) “[A] physician assistant acts an agent for [the supervising] physician . . . .” (Cal.
Code Regs., tit. 16, § 1399.541.) A physician assistant may “[p]erform surgical
procedures without the personal presence of the supervising physician which are
customarily performed under local anesthesia.” (Id., subd. (i)(1).)
and surgeon who is responsible for the supervision of the physician assistant.” (Stats.
2015, ch. 536, § 2.)
19 As of this writing, subdivision (a) of section 3502 provides: “(a) Notwithstanding any
other law, a PA may perform medical services as authorized by this chapter if the
following requirements are met: [¶] (1) The PA renders the services under the
supervision of a licensed physician and surgeon who is not subject to a disciplinary
condition imposed by the Medical Board of California or by the Osteopathic Medical
Board of California prohibiting that supervision or prohibiting the employment of a
physician assistant. [¶] (2) The PA renders the services pursuant to a practice agreement
that meets the requirements of Section 3502.3. [¶] (3) The PA is competent to perform
the services. [¶] (4) The PA’s education, training, and experience have prepared the PA
to render the services.” (§ 3502, subd. (a), as amended by Stats. 2019, ch. 707, § 3.)
31
A “supervising physician” was defined, at all times relevant here, to mean “a
physician and surgeon licensed by the board or by the Osteopathic Medical Board of
California who supervises one or more physician assistants, who possesses a current valid
license to practice medicine, and who is not currently on disciplinary probation for
improper use of a physician assistant.” (§ 3501, former subds. (a)(5), (e).)20 “A
supervising physician shall delegate to a physician assistant only those tasks and
procedures consistent with the supervising physician’s specialty or usual and customary
practice . . . .” (Cal. Code Regs., tit. 16, § 1399.545, subd. (b).) And “[t]he supervising
physician has a continuing responsibility to follow the progress of the patient and to make
sure that the physician assistant does not function autonomously. The supervising
physician shall be responsible for all medical services provided by a physician assistant
under his or her supervision” (Id., subd. (f).)
There is a dearth of decisional law related to physician assistants and
consequently, we apply the case law related to other licensed professions where
appropriate here.
III. Unlicensed Practice of Medicine
A. Additional Background
The findings of the ALJ, which the trial court concluded supported the
determination that Davis engaged in the unlicensed practice of medicine, included the
following: “Throughout the hearing, [Davis] made it clear that he resented performing
liposuction surgeries for doctors who he felt were less qualified than him, and who made
their living from his work, skills and talents . . . . [T]o have the control he wanted and get
the pay he believed he deserved, [Davis] purposefully . . . set out to create a business
arrangement that looked legitimate on paper, but allowed him to . . . run a liposuction
20 This definition has been since been amended in a way that does not impact our
analysis. (See § 3501, subd. (e), as amended by Stats. 2019, ch. 707, § 2.)
32
business without the interference of a physician. [¶] [Davis] hired Dr. Borup, who may
have been well-intentioned, but lacked recent medical experience and was trying to return
to medicine after suffering a debilitating stroke that left him unable to practice for 12
years. [Davis] determined, even before the DSA was signed, that Dr. Borup would never
perform a liposuction at Pacific Liposculpture. Dr. Borup’s entire experience performing
liposuction was obtained at a weekend course he attended after he signed the DSA,
during which he participated in two liposuctions. He never performed another
liposuction . . . . [¶] . . . After his initial observations, Dr. Borup had no involvement in
Pacific Liposculpture other than coming by the office occasionally to review a stack of
medical records and to pick up his check . . . . [¶] Dr. Borup did not see patients, did not
consult with patients, did not perform any administrative duties, and did not participate in
Pacific Liposculpture’s business . . . . [¶] . . . Dr. Borup allowed [Davis] to operate
autonomously and without proper supervision. Although the DSA and other business
related agreements complied, on their faces, with the statutes and regulations governing
physician assistants and supervising physicians, in practice, the agreements were
ignored . . . . Dr. Borup did not appear to be deceitful or coy in his testimony, and it is
found that his testimony was sincere; however, there were several times when he was
confused and uncertain. Dr. Borup had little . . . idea of what was going on at Pacific
Liposculpture. [¶] . . . The evidence demonstrated by clear and convincing proof that
Dr. Borup allowed [Davis] to operate autonomously in violation of California Code of
Regulations, title 16, section 1399.545, subdivision (f). [¶] . . . The evidence [also]
demonstrated by clear and convincing proof that liposuction surgery was not consistent
with Dr. Borup’s specialty or his usual and customary practice. He improperly delegated
medical tasks and procedures to [Davis]. [¶] . . . [Davis’s] liposuction practice was not
conducted under the type and level of physician supervision required within the meaning
of . . . section 3502 . . . . [¶] . . . [Davis’s] actions and business relationship with Dr.
Borup circumvented [the purpose of the Act] and the supervision required before [Davis]
33
could perform certain medical services. Under . . . section 2052, an individual must have
a valid medical license to advertise or hold himself out as practicing any system or mode
of treating the sick, or to diagnose or treat any blemish, deformity, disfigurement, or other
physical or mental condition. Section 3502 authorizes a licensed physician assistant to
perform medical services authorized by the regulations ‘when the services are rendered
under the supervision of a licensed physician and surgeon.’[21] [Clear and convincing
evidence establishes Davis] did not render services under Dr. Borup’s supervision. He
practiced medicine without appropriate delegated authority, exceeded the delegated scope
of practice, and practiced without adequate supervision . . . . [¶] . . . [Davis] contended
that his actions did not constitute the unlawful practice of medicine without a license. In
support, he argued that the regulations allow physician assistants to perform liposuctions
under a local anesthesia without the personal presence of a supervising physician.
[Davis’s] argument is misplaced. Had [Davis] been properly supervised as required by
law, he may have been allowed to perform liposuctions under a local anesthetic, but this
decision does not reach that issue. The conclusion that [Davis] engaged in the unlawful
practice of medicine does not rely on whether liposuction is regularly performed under
local anesthesia. . . . [¶] . . . [T]his decision . . . finds that [Davis] choreographed a
medical practice that ensured he would not be properly supervised as a physician
assistant. Clear and convincing evidence established that [Davis] engaged in the
unlawful practice of medicine without a license.”
B. Davis’s Contentions
Davis asserts that the ALJ’s findings, upon which the Board and the trial court
relied, that he engaged in the unlicensed practice of medicine are not supported by
21 The ALJ was quoting section 3502, former subdivision (a). See the discussion
describing the former subdivision (a) in part II. of the Discussion, and the amendments in
fns. 18 and 19, ante.
34
substantial evidence. He also asserts that the “evidence shows there was never any intent
or act of [him] practicing medicine without a license.” He emphasizes that he did not
hold himself out as a physician, he had a DSA with Borup, he had consulted an
experienced, published lawyer in the field, he sought guidance from the Board, and he
received approval from his probation monitor. Davis asserts that Borup had sufficient
knowledge and ability to serve as supervising physician, and he acted in compliance with
all of his supervisory requirements.
C. Analysis
Section 2052 provides in pertinent part: “(a) . . . any person who practices or
attempts to practice, or who advertises or holds himself or herself out as practicing, any
system or mode of treating the sick or afflicted in this state, or who diagnoses, treats,
operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement,
disorder, injury, or other physical or mental condition of any person, without having at
the time of so doing a valid, unrevoked, or unsuspended certificate as provided in this
chapter or without being authorized to perform the act pursuant to a certificate obtained
in accordance with some other provision of law is guilty of a public offense . . . . [¶] (b)
Any person who conspires with or aids or abets another to commit any act described in
subdivision (a) is guilty of a public offense . . . . [¶] (c) The remedy provided in this
section shall not preclude any other remedy provided by law.”
1. Improper Delegation
As noted, California Code of Regulations, title 16, section 1399.545, subdivision
(b), provides: “A supervising physician shall delegate to a physician assistant only those
tasks and procedures consistent with the supervising physician’s specialty or usual and
customary practice and with the patient’s health and condition.” (Italics added.)
Borup had been a licensed physician in California since 1983. But he was board
certified in anesthesiology and never did a general surgical residency. While he testified
he “did surgery during [his] internship for a month and a half,” he also testified that an
35
intern in this capacity does not actually perform surgery. “You just hold the things for
the surgeon to do the same. You’re just observing to help him keep things out of his
way.” Borup never actually performed any surgery during his internship. He held
various anesthesiology positions between 1982 and 1998, in which he did not perform
surgeries, although he did observe many. Borup had a stroke after practicing as an
anesthesiologist for approximately 18 years and did not practice medicine for 12 years,
between 1998 and 2010.
At the time of his first interview at Pacific Liposculpture in 2010, Borup had
“approximately two months’ experience in the anti-aging field,” which consisted of
attending classes and meetings. After the interview, Borup attended a program on
liposuction in September 2010. The program “was about a week of video and didactic.
And then at the end -- it was a weekend -- two days of hands-on.” Borup performed two
procedures during the weekend course under the observation of a “teacher.” He did not
describe the nature of the procedures he performed. Nor did he discuss the background
and experience of the “teacher.” The entirety of Borup’s practical liposuction surgery
experience consisted of this two-day, two-procedure training. At Pacific Liposculpture,
Borup did not perform a single procedure.
Dr. Sundine, the Board’s expert, opined that Borup did not meet the minimum
qualifications for performing liposuction surgery. Borup’s specialty was not liposuction;
nor was it Borup’s usual and customary practice. Indeed, as Sundine noted, Borup
“never really practiced it. He took a short course to do it, with -- having no surgical
training. And then from my review of the record . . . , he had only done one or two
cases . . . .”
As the Board points out, Davis’s expert, Dr. Dubrow, acknowledged that it was
“hard for [him] to call a specialist in liposuction someone who just learned how to do
liposuction.” He further testified that it was hard to say that liposuction was someone’s
usual and customary practice if the person had just learned liposuction.
36
Davis testified on cross-examination that Borup’s specialty was liposuction
surgery, but that it “was a new specialty for him . . . .” He acknowledged the relevant
training and experience on which he relied in concluding that liposuction surgery was
Borup’s specialty was the single course Borup took and the two procedures he performed
in a weekend class.
We conclude the ALJ’s determination that Dr. Borup was not competent to
delegate the relevant tasks and procedures to Davis is supported by substantial evidence.
Borup was a career anesthesiologist who, following a 12-year hiatus from the practice of
medicine, decided to explore anti-aging medicine, attended some classes, and performed
two unspecified procedures under the supervision of a “teacher.” Substantial evidence
supports the ALJ’s determination that liposuction surgery did not constitute Borup’s
specialty or usual and customary practice. Because a “supervising physician shall
delegate to a physician assistant only those tasks and procedures consistent with the
supervising physician’s specialty or usual and customary practice and with the patient’s
health and condition” (Cal. Code Regs., tit. 16, § 1399.545, subd. (b), italics added), and
because the ALJ’s determination that liposuction surgery was not Borup’s specialty or
usual and customary practice was supported by substantial evidence, the ALJ did not err
as a matter of law in concluding that Borup “improperly delegated medical tasks and
procedures to” Davis.
2. Functioning Autonomously
As noted, California Code of Regulations, title 16, section 1399.545, subdivision
(f), provides: “The supervising physician has continuing responsibility to follow the
progress of the patient and to make sure that the physician assistant does not function
autonomously. The supervising physician shall be responsible for all medical services
provided by a physician assistant under his or her supervision.” (Italics added.) Thus, a
physician assistant cannot function autonomously.
37
According to Moscoso, during the first interview, Borup indicated that he was not
interested in preforming liposuction. Also according to Moscoso, Davis told Borup that
“he was performing all the lipo procedures himself and that he didn’t need any help in
that regard. He didn’t need anybody in the OR, and this would be more like a [sic] off-
site type of supervisory experience.” After the interview, Davis was happy, calling the
prospective situation “perfect”—“someone that is not going to be involved with the
company, with the day-to-day procedures.” In an e-mail to Moscoso, Davis stated, “ ‘I
hope that [Borup] will be able to stick with our system once has [sic] some knowledge.’ ”
By this, according to Moscoso, Davis was referring to the structure that had been
discussed in the interview with Borup, whereby Borup would “stay away . . . from the
company and the daily operations.” Davis also stated in the e-mail, “ ‘We don’t want
another clumsy physician getting in the way.’ ”
Davis maintains that the “clumsy physician” e-mail was misrepresented by the
Board as suggesting that Davis wanted autonomy in his practice. Davis asserts that this
passage was “taken out of context.” According to Davis, the “clumsy physician” remark
was a reference to Dr. Calhoun, for whom he had previously worked, and Davis’s desire
to avoid at Pacific Liposculpture the problems that arose at Dr. Calhoun’s office,
including Calhoun’s lack of experience performing liposculpture, Calhoun’s difficultly
converting consultations into procedures, and his poor staff management skills. While
the ALJ did not rely on the email in the evaluation and analysis portion of the decision
pertaining to the unlicensed practice of medicine, the ALJ did discuss the e-mail in
another portion of the decision, concluding that the e-mail demonstrated Davis’s desire to
operate Pacific Liposculpture “without interference from anyone, particularly a
physician.” We conclude that it could be reasonably inferred from the e-mail that Davis
desired and intended to function autonomously at Pacific Liposculpture, free from any
interference in the form of “another clumsy physician getting in the way.”
38
In addition, the evidence established that the business arrangement Davis
engineered was designed to facilitate autonomous functioning. As Sundine opined,
Pacific Liposculpture “was set up so that [Davis] absolutely did function autonomously.”
At a second interview approximately two weeks after the first, Davis and Borup
discussed the “structure” of the arrangement, “that [Borup] basically could be away from
the office and should be away from the office, enjoying his retirement.” Ultimately,
Davis selected Borup as medical director because, unlike the other candidate, Borup did
not want to get involved in the day-to-day operations. Initially, Borup was to receive 10
percent of the practice’s gross revenues, but before the practice issued its first check to
Borup, the percentage was renegotiated to five percent because Davis felt 10 percent was
too much to pay Borup “for not doing anything.” As noted, Borup never performed a
liposuction procedure at Pacific Liposculpture.
Davis acknowledged that he “preferred to be the primary provider of lipo.” When
he was asked if he made this clear to Borup, Davis replied: “We had a couple of
discussions about it. And the way that I phrased it was, ‘I want to get things off the
ground. Let me get this going, of course, under your supervision. But I know that we
need to have good photos on the website. We need to have good reviews.’ ” He testified
that there was “ always this promise floating in the air that one day after [Davis] got some
of these procedures under our belts and we had a good reputation going that we would
then start to do more stuff together.” However, Davis noted that patients would be
coming into the practice having seen photographs of results achieved by him, not Dr.
Borup. Therefore, according to Davis, “it seemed more straightforward to just have the
person whose work is displayed on the site” perform the procedures. Davis further
testified he thought they could “avoid more problems by making sure we stayed
consistent with that versus having Dr. Borup . . . practicing on people just for the sake of
practicing and maybe ending up with some 19-year-old woman who’s very upset with
some results because she looked at photos and thought that she was going to get
39
something similar to what was in the photos rather than a doctor who was . . . just
practicing just to practice.” Davis was concerned that Dr. Borup was not as skilled when
it came to the artistic aspect of the liposuction procedures. “He could do a procedure
safely. . . . But making sure that everything looked smooth and the patient’s happy, that’s
-- I thought I would be better at that part.” On cross-examination, Davis admitted that he
did not want Borup performing any procedures.
The scripted answer Davis prepared for employees with which to respond when
clients or potential clients asked who performed the procedures at Pacific Liposculpture
is additional evidence establishing that he was functioning autonomously. It read, in part:
“Rod Davis is our Director of Surgery and he performs all of our procedures.” (Bold
omitted, italics added.)
The ALJ’s findings that Davis set out to create a practice where he could operate
without the interference of a physician, that Davis determined that Dr. Borup would not
perform liposuction at Pacific Liposculpture, that Dr. Borup’s involvement in the practice
was extremely limited, and that Dr. Borup allowed Davis to operate autonomously with
no meaningful supervision are all supported by substantial evidence. We conclude that
the ALJ did not err as a matter of law in determining that Davis functioned autonomously
at Pacific Liposculpture in violation of California Code of Regulations, title 16, section
1399.545, subdivision (f).
40
3. Davis’s Additional Contentions Regarding the Unlicensed Practice of
Medicine Allegation
a. Intent to Practice Without a License
Davis asserts that the “evidence shows there was never any intent or act of [Davis]
practicing medicine without a license.” (Italics added.) Davis has not shown that a
finding of intent to violate the law was required to impose discipline.22
The Board relies on Khan v. Medical Board (1993) 12 Cal.App.4th 1834 (Kahn)
for the premise that it was not required to prove intent. At issue in Khan was, among
other things, section 2264, which provides: “The employing, directly or indirectly, the
aiding, or the abetting of any unlicensed person or any suspended, revoked, or unlicensed
practitioner to engage in the practice of medicine or any other mode of treating the sick or
afflicted which requires a license to practice constitutes unprofessional conduct.” The
Khan court noted that section does not contain qualifying words such as “knowingly” or
“intentionally.” (Khan, at pp. 1844-1845.) The court concluded: “[t]he Legislature’s
failure to include ‘knowingly’ or ‘intentionally’ or other qualifying words signals that it
did not intend either guilty knowledge or intent to be elements of the unprofessional
conduct of violating section 2264 by employing an unlicensed person.” (Khan, at
p. 1845.) The court also concluded that reading an intent element into the statute “would
not further the Legislative purpose of public protection.” (Ibid.) Thus, the court held that
“section 2264 does not require a showing of either knowledge or intent on the part of the
practitioner.” (Khan, at p. 1845.) Section 2052, at issue here addressing the unlicensed
22 We could consider Davis’s scienter argument forfeited. He does not provide any
argument or citation to authority in support of the contention that the Board was required
to establish he intentionally engaged in the unlicensed practice of medicine. (See
Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045, fn. 1; accord,
Saltonstall v. City of Sacramento (2014) 231 Cal.App.4th 837, 858, fn. 10 [passing
argument unsupported by citation to authority or evidence deemed forfeited]; see Cal.
Rules of Court, rule 8.204(a)(1)(b).) We will nevertheless address it because the Board
did.
41
practice of medicine, likewise does not contain qualifying words such as “knowingly” or
“intentionally.” (§ 2052, subd. (a).) Further, like section 2264, section 2052 serves the
purpose of protecting the public. We conclude that it, too, does not require a showing of
knowledge or intent. (Khan, at pp. 1844-1845; see also Sternberg v. California State Bd.
of Pharmacy (2015) 239 Cal.App.4th 1159, 1166-1169 [concluding that because section
4081, pertaining to drug record keeping requirements of pharmacists-in-charge, did not
contain an express knowledge requirement, no such requirement was intended by the
Legislature to impose discipline; reasoning that such interpretation supports public
protection goal of the statute; distinguishing criminal statutes from license discipline
statutes, which are civil in nature and designed to protect the public].)
Moreover, even if intent was an element, we would conclude that the existence of
such intent was supported by the evidence here. Davis was not a licensed physician. He
performed procedures which, if performed by a lay person, would constitute the
unlicensed practice of medicine. (See generally § 2052, subd. (a).) Central to this case,
of course, is Borup’s purported supervision of Davis. We have concluded that Borup
lacked the authority to delegate the liposculpture procedures to Davis because they were
not consistent with Borup’s specialty or usual and customary practice. (Cal. Code Regs.,
tit. 16, § 1399.545, subd. (b).) Davis was fully apprised of Borup’s background and
experience. We have also concluded that substantial evidence supports the determination
that Davis functioned autonomously in violation of California Code of Regulations, title
16, section 1399.545, subdivision (f). We further conclude that substantial evidence,
summarized in parts III.C.1. and III.C.2. of the Discussion, ante, supports the
determination that Davis intended to perform these procedures knowing they were not
consistent with Borup’s specialty or usual and customary practice, and that Davis
intended to operate autonomously. Indeed, substantial evidence supports the conclusion
that this was Davis’s very aim in the establishment and operation of Pacific
42
Liposculpture. His contention that there was no showing that he had the intent to practice
medicine without a license is meritless.
b. Supervising Physician’s Duties and Davis’s Responsibility
According to Davis, the duties relied on by the ALJ and the trial court are the
supervising physician’s duties, not the physician assistant’s duties, and it was Dr. Borup’s
responsibility to satisfy these duties, not Davis’s. Davis asserts that, in finding that he
engaged in the unlawful practice of medicine, the trial court improperly placed the burden
of ensuring Borup’s compliance with his duties on Davis.
As noted, at the relevant times, section 3502 provided that a physician assistant
“may perform those medical services as set forth by the regulations of the board when the
services are rendered under the supervision of a licensed physician and surgeon who is
not subject to a disciplinary condition imposed by the board prohibiting that supervision
or prohibiting the employment of a physician assistant.” (§ 3502, former subd. (a).) A
necessary corollary to this statutory provision is that a physician assistant may not
perform such medical services where they are not rendered under the supervision of a
physician. Substantial evidence supports the determination that Davis did engage in the
unlicensed practice of medicine by performing tasks and procedures not consistent with
his supervising physician’s specialty or usual and customary practice (Cal. Code Regs.,
tit. 16, § 1399.545, subd. (b)), and by functioning autonomously (id., subd. (f)).
Moreover, substantial evidence establishes that Davis orchestrated every salient detail of
this arrangement. He sought out and found an essentially retired physician with virtually
no experience in the field who would not perform any procedures or participate in any
day-to-day activities at Davis’s practice, the very purpose for which Davis hired him.
Davis then proceeded to perform all liposuction procedures at Pacific Liposculpture with
no meaningful supervision. That these matters also implicated his supervising
physician’s duties does not insulate Davis from a finding that he engaged in the
unlicensed practice of medicine, or from being disciplined for doing so.
43
c. Compliance with Statutory File-review Requirement
Davis repeatedly relies on the fact that Borup purportedly reviewed a higher
percentage of the medical files than he was required to by law. Prior to the 2019
amendment to section 3502, effective January 1, 2020, and at all times relevant here,
subdivision (c)(2) of that section provided: “The supervising physician and surgeon shall
use one or more of the following mechanisms to ensure adequate supervision of the
physician assistant functioning under the protocols: [¶] . . . The supervising physician
and surgeon shall review, countersign, and date a sample consisting of, at a minimum, 5
percent of the medical records of patients treated by the physician assistant functioning
under the protocols within 30 days of the date of treatment by the physician assistant.”
(§ 3502, former subd. (c)(2); see also Cal. Code Regs., tit. 16, § 1399.545, subd. (e)(3).)
The ALJ rejected Davis’s argument that “Borup went above and beyond his
obligation to review five percent of the medical records he was required to review in his
capacity as a supervising physician, and that Dr. Borup actually reviewed ninety[23]
percent of them.” The ALJ stated that the medical records signed by Borup presented at
the hearing were not dated, and therefore it could not be determined whether they were
reviewed within 30 days of treatment. The files Borup reviewed and signed, other than a
progress note concerning S.M., indeed do not indicate the date of Borup’s review. More
importantly, however, Davis fails to offer any reason why Borup’s compliance with the
statutory and regulatory five percent review requirement would preclude a finding of
unlicensed practice of medicine where such a finding is otherwise supported by the
statutory and regulatory requirements and the evidence we have discussed.
23 Borup actually testified he reviewed “close to 60 percent, maybe even 67 percent. But
it was definitely over 50 percent.”
44
d. Reliance on Handbook and Legal Consultation
Davis argues that he consulted the California Physician’s Assistant’s and
Supervising Physician’s Handbook, and the attorney author Michael Scarano, who had
been General Counsel to the California Academy of Physician Assistants.24 Therefore,
according to Davis, he “had every reason to believe his arrangement with Dr. Borup was
legal and proper.”
Specifically, Davis asserts he relied on the following passage: “Increasingly,
enterprising PAs are seeking and assuming management roles in the medical practices in
which they work. For example, a PA will often be the instigator of a plan to open a
practice in a rural or urban underserved area, and will enlist the assistance of a partially
retired physician... Once the practice is up and running, the PA may need to serve as both
the primary on-site practitioner and the practice administrator, with the physician
perform[ing] [the] clinical obligations of an SP [supervising physician] through electronic
communication and periodic visits to the practice.” In his appellate briefing, Davis also
relies on the following passage: “the practice may be owned by a semi-retired physician
who wants the PA to assume most of the administrative and patient care duties on a day-
to-day basis.” Both passages are from the chapter titled, “The PA’s Potential Role in
Practice Ownership and Management.”
However, as the Board points out, the handbook also includes the following from
the chapter titled, “PA Scope of Practice and Supervision Requirements”: “PA’s are
‘dependent practitioners.’ This means that their authority to practice derives from a
delegation of authority from a supervising physician. Absent such delegation, a PA has
24 There is no evidence in the record describing the nature of Davis’s consultation with
Scarano or what Davis told Scarano concerning the nature of the practice or the “system”
Davis conceived for Pacific Liposculpture. Nor is there any evidence establishing what
Scarano told Davis or what advice, if any, he gave.
45
no legal authority to perform medical services and is technically engaged in the unlawful
practice of medicine.” Of course, both passages Davis relies upon necessarily assume the
referenced physician qualifies as a supervising physician who could give a valid
delegation of authority. Borup did not, and the evidence shows Davis knew it.
In any event, in a case on which the Board relies, Norman v. Department of Real
Estate (1979) 93 Cal.App.3d 768 (Norman), the court held that even acts committed in
good faith, that are not deemed willful, and which were undertaken in accordance with
legal advice, are not immune from discipline. (Id. at p. 778.) Norman involved licensed
real estate agents. The Norman court wrote: “ ‘No merit is seen in appellants’ insistent
contentions that since their acts were in good ‘faith,’ and not ‘willful,’ and in accordance
with ‘legal advice,’ they were improperly subjected to discipline. Disciplinary
procedures provided for in the Business and Professions Code . . . are to protect the
public not only from conniving real estate salesmen but also from the uninformed,
negligent, or unknowledgeable salesman.’ [Citation.] Their purpose ‘is not to punish but
to afford protection to the public . . . ’ ” (Ibid.) Although Norman involved discipline
imposed by the Department of Real Estate as opposed to the Physician Assistant Board,
the principles are the same. Davis is not immune from discipline merely because he
consulted the California Physician’s Assistant’s and Supervising Physician’s Handbook
and its attorney author, even if he did so in good faith.
e. Equitable Estoppel
Davis asserts that, because Dr. Borup was approved by Davis’s probation monitor,
the Board should be estopped from finding that Borup was not qualified to be Davis’s
supervising physician and that Davis engaged in the unlicensed practice of medicine.
“ ‘ “Generally speaking, four elements must be present in order to apply the
doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts;
(2) he must intend that his conduct shall be acted upon, or must so act that the party
asserting the estoppel had a right to believe it was so intended; (3) the other party must be
46
ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.” ’ ”
(Honeywell v. Workers’ Comp. Appeals Bd. (2005) 35 Cal.4th 24, 37 (Honeywell).)
Davis testified that, as a condition for his initial California probationary license, he
was required to obtain preauthorization of his supervising physician. His probation
monitor was Dennis Rodriguez. With regard to Davis’s employment with Dr. Bittner, he
testified that Rodriguez came to Bittner’s office and met with both Davis and Bittner.
According to Davis, he and/or Bittner made clear to Rodriguez that Davis would be
performing liposuction procedures on patients. Eventually, they received approval from
Rodriguez.
Davis subsequently got approval from Rodriguez when Davis went to work for Dr.
Calhoun. Rodriguez came to the office and met with both Davis and Dr. Calhoun. Davis
testified they submitted to Rodriguez their DSA, Dr. Calhoun’s license number, and “a
few other forms.” Asked if he made it clear to Rodriguez he would be performing
liposuction for Dr. Calhoun, Davis responded, “It was necessary to be as clear as
possible, especially with a probationary license.”
Davis testified that when Dr. Borup became his supervising physician, he was still
in probationary status and Rodriguez was still his monitor. In this instance, Davis did not
have an in-person meeting with Rodriguez. Davis testified: “I believe he said it was
because there was only a couple of months left in probation, and things had been going
fine with the probation. There had been no violations thus far. And he could just check it
out from his end with Dr. Borup. As long as I sent in the same paperwork, he would
check it out and get back to me if he’s approved or not.” Davis testified he could not
recall whether he sent Borup’s CV to Rodriguez, but he did send the first DSA he and Dr.
Borup adopted as well as “the other supervisory forms.” Davis testified that he was
approved to work with Dr. Borup as his supervising physician. Davis did not call
Rodriguez to testify on his behalf.
47
The elements for the imposition of equitable estoppel are not established on this
record. Regarding the first element, we cannot say here that the party to be estopped, the
Board, was apprised of the true state of facts based on the representations made by Davis
to Rodriguez. The evidence does not establish the particulars or what Davis told
Rodriguez and the record does not contain copies of all of the documents Davis provided
concerning the arrangement with Dr. Borup. While it is conceivable that Rodriguez and
the Board could be charged with knowledge concerning the extent of Borup’s
qualifications and his resulting inability to properly delegate authority to Davis, the
evidence does not establish as much. And in any event, the Board could not be charged
with knowing the extent to which Davis intended to and did operate autonomously.
Davis cannot seek to impose an estoppel against the Board without establishing that
relevant and truthful information was communicated to Rodriguez and the Board so the
Board would be apprised of the relevant facts. As to the third element, Davis could not
be said to be ignorant of the true state of facts. He knew what the true facts were. Thus,
at least two of the four elements required for the imposition of equitable estoppel are not
present here. (Honeywell, supra, 35 Cal.4th at p. 37.)
In any event, equitable estoppel “ordinarily will not apply against a governmental
body except in unusual instances when necessary to avoid grave injustice and when the
result will not defeat a strong public policy.” (Hughes v. Board of Architectural
Examiners (1998) 17 Cal.4th 763, 793.) Here, we have concluded that substantial
evidence supports the conclusion that Davis engaged in the unlicensed practice of
medicine because his purported supervising physician could not properly delegate the
relevant authority to Davis and because Davis functioned autonomously. Under these
circumstances, we cannot say that employing estoppel is necessary to avoid grave
injustice, or that doing so would not defeat a strong public policy. (Ibid.; accord City of
Long Beach v. Mansell (1970) 3 Cal.3d 462, 493 [“an estoppel will not be applied against
the government if to do so would effectively nullify ‘a strong rule of policy, adopted for
48
the benefit of the public’ ”].) Instead, we conclude the contrary. Section 3504.1
provides: “Protection of the public shall be the highest priority for the Physician
Assistant Board in exercising its licensing, regulatory, and disciplinary functions.” That
same provision further states: “Whenever the protection of the public is inconsistent with
other interests sought to be promoted, the protection of the public shall be paramount.”
Thus, we disagree with Davis that the Board should be estopped from finding
Borup not qualified to be Davis’s supervising physician, and that Davis engaged in the
unlicensed practice of medicine, based on the prior approval of Borup by Davis’s
probation monitor.25
f. Reliance on Closure of Prior Investigation
Davis also relies on the fact that the Medical Board closed a prior investigation
into Borup’s alleged aiding and abetting Davis’s illegal practice of medicine. Davis
asserts that he understood this as approval of “his practice under Dr. Borup.” To the
extent that Davis implies an equitable estoppel argument, in this regard, the argument is
without merit for the reasons stated in part III.C.3.e. of the Discussion, ante.
Furthermore, the full record, including all allegations, findings, and conclusions, of the
prior investigation are not in the record. Thus, the conduct and disposition of the prior
complaint and investigation into Borup’s alleged aiding and abetting Davis in the illegal
practice of medicine is not dispositive of the matters here.
4. Conclusion - Unlawful Practice of Medicine
We conclude that substantial evidence supported the ALJ’s determination that
Davis performed procedures Borup was incompetent to delegate in violation of California
Code of Regulations, title 16, section 1399.545, subdivision (b), and that Davis
functioned autonomously in violation of California Code of Regulations, title 16, section
25In light of our determination, we need not address the additional grounds on which the
Board relies in asserting that equitable estoppel should not apply here.
49
1399.545, subdivision (f). Therefore, substantial evidence supported the ALJ’s
determination that Davis engaged in the unlicensed practice of medicine, and the ALJ did
not err as a matter of law in reaching this conclusion.
IV. Gross Negligence — Patient S.M.
A. Additional Background
In finding that Davis was grossly negligent in his care and treatment of S.M., the
ALJ stated: “Clear and convincing evidence established that [Davis] engaged in an
extreme departure from the standard of care and that he committed gross negligence in
his post-operative care and treatment of patient SM. Dr. Sundine opined that [Davis]
should have aspirated the patient’s lump and referred her to Dr. Borup, and that his
failure to do so was an extreme departure from the standard of care. Although Dr.
Dubrow disputed that SM had a pseudo bursa and agreed with [Davis’s] initial
recommended post-operative care, Dr. Dubrow did not examine SM. Additionally, he
conceded that SM’s lump should have been drained if it had not resolved itself after a
period of time. Dr. Batra, a plastic surgeon and SM’s subsequent treating physician,
examined SM, and concluded that she had a pseudo bursa that should have been
aspirated. Based on the totality of the evidence, Dr. Sundine’s opinion was more
persuasive than Dr. Dubrow’s on this issue. [Davis] was grossly negligent in his care and
treatment of patient SM.”
B. Davis’s Contentions
Davis asserts the finding that he committed gross negligence in his post-operative
treatment of S.M. is not supported by substantial evidence. Davis asserts he “did not
consult with Dr. Borup with respect to S.M., because [he] thought he was competent to
address the lump” on his own. He further asserts his conservative treatment of S.M.,
which was endorsed by Dr. Dubrow, was appropriate. Davis also emphasizes that,
ultimately, he did refer S.M. to a physician three months after the procedure.
50
C. Analysis
Gross negligence is “ ‘the want of even scant care or an extreme departure from
the ordinary standard of conduct.’ ” (Franz v. Board of Medical Quality Assurance
(1982) 31 Cal.3d 124, 138, italics added; accord City of Santa Barbara v. Superior Court
(2007) 41 Cal.4th 747, 754.) “The use of the disjunctive in the definition indicates
alternative elements of gross negligence—both need not be present before gross
negligence will be found.” (Kearl v. Board of Medical Quality Assurance (1986) 189
Cal.App.3d 1040, 1053 (Kearl).)
S.M. testified that approximately five weeks after her procedure, a sack of fluid
formed on her right thigh. She discussed the development with Davis at a follow-up
appointment. Davis told S.M. that the condition was normal, that she had nothing to
worry about, and that it would go away. Davis did not offer S.M. the option of seeing a
supervising physician. As time passed, the swelling did not dissipate, and actually grew
harder. S.M. contacted Davis again the following month and sent him photographs.
Davis called in a prescription to S.M.’s pharmacy, and she took the medication.
Thereafter, S.M. communicated to Davis that the swelling had not diminished and that it
was “very hard.” Additionally, a bruise had formed at the site of the swelling. S.M. grew
concerned that she might have a seroma that could require additional surgery if it was not
drained. S.M. again contacted Davis. Again, Davis did not offer to have S.M. seen by a
supervising physician. S.M. ultimately decided to go elsewhere for treatment. S.M. went
to her primary care physician, who had an ultrasound performed and then referred her to
Dr. Batra, a plastic surgeon. Unlike Davis’s expert, Dr. Dubrow, Dr. Batra actually
examined S.M. He diagnosed the condition on her right thigh as a pseudobursa. He
characterized the condition as “obvious” and testified, “it looks like hell.” He informed
S.M. that surgery was required to remove it, and that it would leave a scar and possibly
an indentation.
51
Dr. Sundine, the Board’s expert, concluded that, while Davis’s initial management
of S.M.’s seroma was appropriate, as the matter persisted, Davis should have been more
aggressive. He testified that beyond “a couple weeks . . . you want to start thinking that
you might need to do something else.” According to Sundine, when more aggressive
treatment was called for, a physician’s assistant should have brought the matter to the
attention of a supervising physician, and Davis’s failure to do so violated the applicable
standard of care. In his report, Sundine found it “amazing” that Davis “did not recognize
the seroma which could have been easily diagnosed with an ultrasound or something as
simple as a needle aspiration.” Sundine stated: “By failing to treat the seroma early the
patient will now require excision of the pseudo-bursa as proposed by Dr. Batra . . . .”
Sundine characterized Davis’s performance in this regard as an “[e]xtreme departure.”
For his part, Davis testified that he had dealt with seromas in the past, and he felt
sufficiently comfortable and knowledgeable to deal with S.M.’s condition. He did not
feel he needed Dr. Borup’s assistance. Davis’s notes indicate he recommended, in a text
message, that S.M. go for a second opinion.26 This was two and a half months after
S.M.’s April 17, 2013, procedure.
In short, over the two and a half months between S.M.’s procedure and the date on
which he first raised the possibility of S.M. getting a second opinion via text, Davis
continued in unsuccessfully trying to remedy S.M.’s condition himself. Initially he
simply insisted to her that everything would be fine. He steadfastly refused to
acknowledge that consultation with a physician was warranted and appropriate because
26 This text message was dated July 2, 2013, and stated: “Tried calling u. A hematoma
would be black and blue rather than just swelling. U should go for a second opinion if u r
having doubts. Otherwise u will continue to read horror stories online.”
52
he felt he did not need the assistance of his supervising physician. 27 As a result, S.M.
was left with a condition which, if treated differently earlier, could have been resolved,
but as a result of Davis’s post-operative care, will require additional surgery that will
result in a scar and cost $11,500.
Resolving all conflicts in favor of the Board and giving the Board the benefit of
every reasonable inference in support of the judgment as we are required to do under the
substantial evidence test (Kifle-Thompson, supra, 208 Cal.App.4th at p. 523), we
conclude that substantial evidence supports the ALJ’s determination that Davis acted
with gross negligence in his post-operative care of S.M. Sundine, the Board’s expert,
considered Davis’s post-operative care of S.M. to be an “extreme departure.” The
testimony of a qualified expert witness found to be credible by the Board, the ALJ, and
the trial court may alone “provide substantial evidence to support a finding of gross
negligence.” (Kearl, supra, 189 Cal.App.3d at p. 1053.) Any conflict between Sundine’s
testimony and that of Davis and his expert, Dr. Dubrow, “must be resolved in favor of the
judgment.” (Ibid.)
We conclude that substantial evidence supports the ALJ’s determination that
Davis’s post-operative care of S.M. constituted gross negligence.
27 In asserting that he thought he was competent to address the issue, Davis relies on
California Code of Regulations, title 16, section 1399.540, subdivision (d). That section
provides, “[a] physician assistant shall consult with a physician regarding any task,
procedure or diagnostic problem which the physician assistant determines exceeds his or
her level of competence or shall refer such cases to a physician.” (Cal. Code Regs., tit.
16, § 1399.540, subd. (d), italics added.) However, a physician assistant’s failure to
acknowledge that a problem exceeds his or her level of competence, where appropriate,
cannot be deemed to shield the physician assistant from a finding of gross negligence.
53
V. False and/or Misleading Advertising
A. Additional Background
In finding that Davis engaged in false and/or misleading advertising, the ALJ
stated: “Pacific Liposculpture advertised its services on the internet. At various times,
the advertisements contained false and misleading statements, particularly as related to
Dr. Borup and the ‘experienced team’ of professionals who performed liposuctions.
[Davis] admitted the falsity of some of the content of Pacific Liposculpture’s website, but
contended he was not responsible for posting content on the website. Evidence at the
hearing established [Davis] was involved in approving the content of the website and, as
CEO of Pacific Liposculpture, Inc., he was further responsible for its content. The
evidence also showed [Davis] regularly reviewed Pacific Liposculpture’s website and
knew, or should have known, it contained false and misleading statements. [¶] . . . [¶]
[Davis’s] use of the title Director of Surgery, in conjunction with his being the medical
practitioner performing all the liposuction surgery at Pacific Liposuction [sic] and his
failure to define his credentials and rely instead upon the abbreviations ‘P.A.’ or ‘PA –
C,’ constitutes misleading advertising. [¶] . . . The evidence showed by clear and
convincing proof that [Davis] disseminated false and misleading advertising.”
B. Davis’s Contentions
Davis asserts the finding that he engaged in false and/or misleading advertising is
not supported by substantial evidence. He asserts the advertising was “substantially
accurate and was created without intent to mislead the public.” He also contends that he
advised his staff not to address him as “doctor,” corrected patients who erroneously
addressed him as doctor, and never represented that he was a doctor. Davis further
contends that use of the title “Director of Surgery” did not imply that he was a physician,
and that the title was appropriate because he was the person performing the surgery and
overseeing the management of the surgical suite. He asserts that the informed consent
forms were amended to be clearer about who would perform the procedures. Davis also
54
asserts that he attempted in good faith to monitor the Pacific Liposculpture Yelp page to
correct consumer posts referring to him as “doctor,” and further asserts that any failure to
speedily correct third-party comments on Yelp is not a proper ground for discipline.
C. Analysis
In this context, a “false, fraudulent, misleading, or deceptive statement, claim, or
image includes a statement or claim . . . that does any of the following”: “Contains a
misrepresentation of fact”; “[i]s likely to mislead or deceive because of a failure to
disclose material facts”; “[i]s intended or is likely to create false or unjustified
expectations of favorable results”; “[c]ontains other representations or implications that
in reasonable probability will cause an ordinarily prudent person to misunderstand or be
deceived”; and/or “[i]ncludes any statement, endorsement, or testimonial that is likely to
mislead or deceive because of a failure to disclose material facts.” (§ 651, subd.
(b)(1),(2),(3)(A),(5),(8); see also § 17500.)
Moscoso testified that, once the company was established, Davis took
responsibility for marketing Pacific Liposculpture away from him. From Borup’s
resume, Davis created Borup’s biographical information for the website, which appeared
under the title, “ ‘Meet Our Medical Director.’ ” Moscoso testified that Davis was
interested in downplaying the fact that Borup was not a plastic surgeon.
We have previously noted the biographical information for Borup on the Pacific
Liposculpture website. (See fn. 4, ante.) Versions of that information contained a
number of statements relevant here.
The website stated: “Dr. Borup, along with his highly trained liposculpture team,
will help to minimize your risks while offering you the best possible care all under local
anesthesia!” (Italics added.) Neither Dr. Borup nor members of any “highly trained
liposculpture team” other than Davis could be said to have done anything to minimize
risks while offering the best possible care.
55
The website also stated: “Dr. Borup supervises a team of highly trained
liposuctionists with a combined experienced [sic] of well over 10,000 lipo procedures.”
As pertinent here, Webster’s Dictionary defines the word “team” to mean: “a number of
persons associated together in work or activity: such as [¶] a: a group on one side (as in
football or a debate) [¶] b: crew, gang.” (Merriam-Webster Online Dict.
[as of April 1, 2021], archived at
, capitalization omitted.) Yet, only one person—
Davis—was involved in the liposuction procedures. There was no “team” of “highly
trained liposuctionists.” Moreover, the evidence established that Borup did not
meaningfully supervise Davis at all.
The website stated: “Because of Dr. Borup’s advanced training and expertise in
liposuction technology, PacificLipo’s procedures significantly reduce pain, swelling and
bruising, while providing you with smoother results, tighter skin, permanent
improvements, and no unsightly scars.” (Italics added.) However, Borup did not have
“advanced training and expertise in liposuction technology.” Moreover, even if one
could consider Borup to have such advanced training and expertise in liposuction
technology, because he was not involved in the procedures or their supervision, there was
no cause and effect between Borup’s purported “advanced training and expertise in
liposuction technology” and the reduction in pain, swelling, and bruising, and “smoother
results, tighter skin, permanent improvements, and no unsightly scars.”
The website stated: Borup was “highly published.” Yet, he had published but one
article. That publication was in 1983, appears to have been coauthored with two other
individuals and had nothing to do with liposuction.
The website stated: “Dr. Borup offers patients a lifetime of experience and
knowledge in his state-of-the-art outpatient surgical center.” (Italics added.) However,
virtually all of Borup’s “lifetime of experience” was in anesthesiology, not liposuction or
surgery.
56
Regarding the use of the title, “director of surgery,” Dr. Sundine opined that Davis
violated the applicable standard of care by using that title. Sundine had never heard of a
physician assistant identifying himself or herself as director of surgery or chief of surgery
“at any of the hospitals that I’ve been at.” Sundine testified that a director of surgery
should be, at the least, a medical doctor. Sundine testified that he believed it was
misleading for a physician assistant to identify as a director of surgery because “it tries to
bestow credentials that I don’t think they will have.” Although Davis’s expert, Dubrow,
testified he knew of situations where non-physicians had the title director of surgery, he
did not testify that any had been physician assistants or advertised their title for purposes
of marketing their practices. And Dubrow acknowledged that the title could be
misleading.
Sundine testified that Davis also violated the applicable standard of care in his use
of the informed consent forms. Informed consent forms used by Pacific Liposculpture
included the following authorization: “I hereby authorize Dr. Jerrell Borup, MD, Rod
Davis, PA, and such assistants as may be selected to perform the procedure or treatment.”
This statement reads as if Dr. Borup and Davis, and possibly selected assistants, would
perform the patient’s liposuction procedure. A later version stated: “I hereby authorize
Dr. Jerrell Borup, MD, OR Rod Davis, PA and such qualified assistants as may be
selected to perform the procedure or treatment.” Sundine testified that, on the forms,
“there’s this kind of hint that Dr. Borup . . . really is the person who’s doing it or
supervising it or is directly there. I think it’s very misleading.” The evidence
established, and Davis acknowledged, that Davis had no intention of Borup performing
any procedures, and thus any indication that Borup was or might be the one performing
any given procedure or that he might be performing the procedure with Davis was
disingenuous and misleading.
Asked whether any particular representations on the website were relevant in
making her decision to submit to treatment at Pacific Liposculpture, C.N. identified the
57
language indicating that Dr. Borup “had 20 years’ experience,” which indicated to her
that “he had, you know, lot of years of experience and that he was chief of staff
formerly.” The website left C.N. with the impression that Dr. Borup was knowledgeable
in performing liposculpture.
K.D. testified that nothing about the website suggested to her that anyone other
than a doctor would perform her liposculpture procedure.
L.W. assumed that a “director of surgery” would be a doctor.
S.M. testified that she found Davis’s title—“director of surgery”—to be
“extremely misleading.” S.M. did not realize that, in California, someone could have that
title when the person is not a surgeon.
Based on all of the foregoing, we conclude that substantial evidence supports the
conclusion that these statements and representations constituted “misrepresentation[s] of
fact,” were “likely to mislead or deceive because of a failure to disclose material facts,”
contained “other representations or implications that in reasonable probability will cause
an ordinarily prudent person to misunderstand or be deceived,” and/or included “any
statement, endorsement, or testimonial that is likely to mislead or deceive because of a
failure to disclose material facts.” (§ 651, subd. (b) (1),(2),(3)(A),(5),(8); see also
§ 17500.)
We are unpersuaded by Davis’s contention that the advertising was “substantially
accurate and was created without intent to mislead the public.” First, Davis has not
identified any “substantial accuracy” defense to a false advertising allegation where
numerous statements are indeed false and misleading. Nor are we aware of any such
defense. Second, even if intent is a required element, substantial evidence supports a
finding of such intent. The statements were clearly and obviously false and/or
misleading. Davis had control of the website and informed consent forms, he knew the
true circumstances of the practice, and from the totality of the circumstances, it can be
readily inferred that he intentionally made the statements false and misleading. Davis
58
knew Borup would not perform liposuction procedures and nonetheless created
advertising and informed consent forms that strongly suggested Borup’s active
involvement in the procedures and that Borup had significant expertise in liposuction.
Moscoso testified that Davis wanted to “downplay[]” the fact that Borup was not a plastic
surgeon. The frequently asked questions script Davis gave to his employees further sheds
light on Davis’s intent. In response to the question who would perform the procedure,
Davis instructed employees to answer: “Rod Davis is our Director of Surgery and he
performs all of our procedures. He is nationally certified and specializes in liposculpture.
He has performed over 10,000 procedures, more than most physicians. … Rod is licensed
in both California and New York.” (Bold omitted, italics added.) Davis did not tell his
employees to explain he is a certified physician assistant or that the California and New
York licenses referred to were for a physician assistant. And, in our view, the reference
to “more than most physicians,” in context was likely to be understood that Davis was a
doctor who had done more liposculpture than other doctors.
Davis’s contention he “never represented” that he was a physician also misses the
mark. While there is no evidence in the record establishing that Davis affirmatively
misrepresented that he was a physician, the evidence summarized ante demonstrates that
Davis made misleading statements, particularly his title of “Director of Surgery,” that
would lead a reasonably prudent person to believe he was a physician and surgeon. We
disagree with Davis’s contention to the contrary that this title did not imply that he was a
physician. Moreover, that there is evidence establishing he occasionally corrected people
when they addressed him as “doctor” does not undermine our conclusion concerning the
allegation of false and/or misleading advertising. And while he used the term P.A. in the
website, he never spelled out what that meant, explained his certifications, or otherwise
explained his formal training.
We conclude that substantial evidence supports the ALJ’s conclusion that Davis
disseminated false and misleading advertising.
59
VI. Repeated Acts of Negligence
A. Additional Background
The ALJ concluded: Davis “engaged in repeated negligent acts in his care and
treatment of LW, CN, KD and SM. [Davis] used consent forms for each patient that
were misleading and did not adequately inform the patients who would be performing
their surgeries. [Davis’s] false and misleading advertisement and the confusing use of the
title Director of Surgery caused patients to reasonably believe a medical doctor would
have some involvement in their procedures. Each of these constituted departures from
the standard of care. In addition, [Davis’s] post-operative care of SM constitutes
additional repeated negligence. Clear and convincing evidence established that [Davis]
engaged in repeated negligent acts.”
B. Davis’s Contentions
Davis asserts that substantial evidence does not support the ALJ’s finding that he
engaged in repeated acts of negligence. He asserts the findings that the informed consent
forms were misleading and his allegedly misleading use of the title “Director of Surgery”
do not constitute negligent care and treatment. He maintains the language of the
informed consent forms was not misleading. According to Davis, S.M. was the only
patient whose actual treatment was found to have fallen below the standard of care.
Thus, Davis asserts that there was no evidence of negligent care of anyone other than
S.M., and thus there was no repeated negligence to support the ALJ’s findings.
C. Analysis
Section 2234, subdivision (c) identifies as unprofessional conduct “repeated acts
of negligence.” To constitute repeated acts of negligence, “there must be two or more
negligent acts or omissions. An initial negligent act or omission followed by a separate
60
and distinct departure from the applicable standard of care shall constitute repeated
negligent acts.” (§ 2234, subd. (c), italics added.)28
We concluded in part IV. of the Discussion, ante, that Davis committed gross
negligence in his post-operative care of S.M. Thus, only one additional act of negligence
is required to support a finding of repeated acts of negligence.
As discussed in part V. of the Discussion, ante, substantial evidence supports the
ALJ’s conclusion that Davis’s informed consent forms were misleading with regard to
who would perform the liposuction procedures. As Davis acknowledges, C.N., K.D., and
L.W., signed the earlier version, while S.M. signed the later version. The earlier version
signed by the other three patients stated: “I hereby authorize Dr. Jerrell Borup, MD, Rod
Davis, PA, and such assistants as may be selected to perform the procedure or treatment.”
As we have noted, this form misleads the patient to believe that Dr. Borup and Davis, and
possibly selected assistants, would participate in the liposuction procedure. Dr. Sundine,
testified that “there’s this kind of hint that Dr. Borup . . . really is the person who’s doing
it or supervising it or is directly there. I think it’s very misleading.” Sundine testified
that Davis violated the applicable standard of care regarding informed consent in his use
of these informed consent forms. We agree.
28 Section 2234 provides in pertinent part: “The board shall take action against any
licensee who is charged with unprofessional conduct. In addition to other provisions of
this article, unprofessional conduct includes, but is not limited to, the following: [¶] . . .
[¶] (c) Repeated negligent acts. To be repeated, there must be two or more negligent acts
or omissions. An initial negligent act or omission followed by a separate and distinct
departure from the applicable standard of care shall constitute repeated negligent acts. [¶]
(1) An initial negligent diagnosis followed by an act or omission medically appropriate
for that negligent diagnosis of the patient shall constitute a single negligent act. [¶] (2)
When the standard of care requires a change in the diagnosis, act, or omission that
constitutes the negligent act described in paragraph (1), including, but not limited to, a
reevaluation of the diagnosis or a change in treatment, and the licensee’s conduct departs
from the applicable standard of care, each departure constitutes a separate and distinct
breach of the standard of care.”
61
The manifest purpose of the informed consent forms is to obtain the patient’s
informed consent. Failure to obtain informed consent is a form of professional
negligence. (Cobbs v. Grant (1972) 8 Cal.3d 229, 240-241 (Cobbs); Borman v Brown
(2021) 59 Cal.App.5th 1048, 1050, fn. 3; Bigler-Engler v. Breg, Inc. (2017) 7
Cal.App.5th 276, 322, citing Moore v. Regents of University of California (1990) 51
Cal.3d 120, 129 (Moore).) The foundation for a physician’s duty to obtain informed
consent rests on four postulates: “The first is that patients are generally persons
unlearned in the medical sciences and therefore, except in rare cases, courts may safely
assume the knowledge of patient and physician are not in parity. The second is that a
person of adult years and in sound mind has the right, in the exercise of control over his
own body, to determine whether or not to submit to lawful medical treatment. The third
is that the patient’s consent to treatment, to be effective, must be an informed consent.
And the fourth is that the patient, being unlearned in medical sciences, has an abject
dependence upon and trust in his physician for the information upon which he relies
during the decisional process, thus raising an obligation in the physician that transcends
arms-length transactions.” (Cobbs, at p. 242.)
“It is the physician’s duty ‘ “to disclose to the patient all material information to
enable the patient to make an informed decision regarding the proposed operation or
treatment. [¶] Material information is information which the physician knows or should
know would be regarded as significant by a reasonable person in the patient’s position
when deciding to accept or reject a recommended medical procedure. ...” ’ ”
(Quintanillo v. Dunkelman (2005) 133 Cal.App.4th 95, 115, quoting Arato v. Avedon
(1993) 5 Cal.4th 1172, 1188, fn. 9.)
We note here that section 2234, subdivision (c), does not limit repeated “acts” of
negligence to the actual diagnosis or treatment of patients and does not require injury or
harm. (See Kearl, supra, 189 Cal.App.3d at p. 1053 [section 2234 does not limit gross
negligence or unprofessional conduct to the actual treatment of a patient; nor does it
62
require injury or harm to the patient before action may be taken against the physician or
surgeon].) Moreover, our high court has recognized that informed consent is not
necessarily limited to disclosing the risks of and alternatives to medical procedures.
In Moore, supra, 51 Cal.3d 120, the court addressed the question of whether a
physician’s failure to disclose preexisting research and economic interests related to a
medical procedure performed on the plaintiff stated a cause of action for negligence
based on an informed consent theory. (Id. at pp.124-125.) There, a doctor recommended
removal of the plaintiff’s spleen. (Id. at p. 126.) Before the operation, the doctor formed
the intent and made arrangements to obtain portions of the spleen for medical research of
plaintiff’s blood cells unrelated to plaintiff’s care. (Ibid.) Plaintiff was not informed of
the plan to conduct this research nor was his permission requested. (Ibid.) Subsequently,
at the doctor’s direction, the plaintiff made additional visits to the doctor’s office where
samples of the plaintiff’s blood were drawn and used for this research. (Ibid.) Our high
court held that the doctor’s failure to disclose his research and economic interests before
obtaining plaintiff’s consent for the medical procedures stated a cause of action that could
“properly be characterized either as the breach of a fiduciary duty to disclose facts
material to the patient’s consent or, alternatively, as the performance of medical
procedures without first having obtained the patient’s informed consent.” (Id. at p. 129,
italics added.)
Citing Cobb, the Moore court stated that for a patient’s consent to treatment to be
effective, it must be informed consent and “in soliciting the patient’s consent, a physician
has a fiduciary duty to disclose all information material to the patient’s decision.”
(Moore, supra, 51 Cal.3d at p. 129, citing Cobbs, supra, 8 Cal.3d at pp. 242, 246.) The
court reasoned: “To be sure, questions about the validity of a patient’s consent to a
procedure typically arise when the patient alleges that the physician failed to disclose
medical risks, as in malpractice cases, and not when the patient alleges that the physician
had a personal interest, as in this case. The concept of informed consent, however, is
63
broad enough to encompass the latter. ‘The scope of the physician’s communication to
the patient ... must be measured by the patient’s need, and that need is whatever
information is material to the decision.’ ” (Id. at p. 129, italics added.)
We see the concept of informed consent as being broad enough to include
information about whether the person who is going to perform a patient’s surgery is a
doctor or not. Clearly identifying the practitioner who would perform surgery, making
clear whether the person performing the procedure is a physician assistant and not a
doctor, and making clear whether or not a physician would be involved at all are matters
relevant to informed consent. Such information “is something that a reasonable patient
would want to know in deciding whether to consent to a proposed course of treatment. It
is material to the patient’s decision and, thus, a prerequisite to informed consent.”
(Moore, supra, 51 Cal.3d at p. 130, citing Cobbs, supra, 8 Cal.3d at p. 245.) The failure
to adequately make these disclosures here cannot be characterized as “a mere technical
lapse such as ‘failing to dot or cross all the “i’s” or “t’s”.’ ” (Kearl, supra, 189
Cal.App.3d at p. 1054.)
At oral argument, counsel for Davis asserted that the patients knew Davis was not
a doctor before their surgery. To the contrary, the evidence establishes that at least one of
the patients who received the original consent form did not know that. Moreover, that
patient and another who received the same form were never told the person who would
be performing their surgery was not a doctor.
K.D. testified that when Davis introduced himself, he did not state what his title
was and K.D. believed he was a doctor. When she went back for her second surgery the
following day, she still had no reason to believe that he was not a doctor. When asked
whether she knew Davis was supposed to be supervised by a doctor, K.D. testified she
thought Davis was “the doctor.” She testified she “absolutely” would not have gone
through with either procedure had she known Davis was not a doctor for the following
reason: “Because he’s not a doctor and he’s not a surgeon.”
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As for C.N., she testified that she knew Davis was a “PA or physician assistant,”
before her surgery. But this did not concern her because she thought the “guy that had 20
years of training was going to be the one doing [her] surgery,” and she thought Davis
would be “assisting in the procedure or at least overlooked by Dr. Borup.” This belief
was reasonable given the wording of the original consent form, which suggested Borup
and Davis, and possibly selected assistants, would participate in the patient’s procedure.
C.N. testified that by the time she realized the doctor was not going to attend, she “was
already getting cut open in the surgery room.”
We conclude that the foregoing constitutes substantial evidence supporting the
ALJ’s and the Board’s findings of repeated acts of negligence.29
VII. Dishonesty and Unprofessional Conduct
A. Additional Background
The ALJ stated: “[c]lear and convincing evidence established that [Davis] was
dishonest by his false and misleading advertising.” The ALJ further stated: “Pursuant to
the findings of facts and discussions above, [Davis] engaged in acts that constituted
engaging in the [un]lawful practice of medicine, gross negligence, repeated negligent
29 On appeal, the Board also asserts that the determination as to repeated acts of
negligence is supported by substantial evidence in that “it would be a violation of the
standard of care if any patient was not given sufficient time to review the informed
consent form and/or if [Davis] never discussed the risks associated with liposuction,
which was established by substantial evidence.” While we would conclude that
substantial evidence in the form of Sundine’s testimony as well as that of the patients
would support this conclusion, neither the ALJ nor the Board relied on these grounds in
the findings as to repeated acts of negligence, so we do not base our conclusions on either
the time provided for review or the failure to discuss the risks. Also, we find it
unnecessary to address whether the use of the title “director of surgery” in the context of
the facts here was an act of negligence. We limit our consideration regarding repeated
acts of negligence to those findings made by the ALJ and adopted by the Board related to
the grossly negligent treatment of S.M. and the failure of the informed consent forms to
disclose whether the person who would perform the surgery was a doctor.
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acts, and disseminating false and misleading advertising. Clear and convincing evidence
established that [Davis] engaged in unprofessional conduct that is unbecoming a member
in good standing in the medical profession, breached the rules and ethical codes of a
physician assistant, and demonstrates an unfitness to practice as a physician assistant.”
B. Davis’s Contentions
Davis asserts that the Board erred as a matter of law in finding that he engaged in
dishonesty and general unprofessional conduct. He asserts these findings were based on
the allegations that he engaged in the unlicensed practice of medicine, committed gross
negligence, committed repeated acts of negligence, and disseminated false and
misleading advertising, which, he asserts as set forth ante, are not supported by
substantial evidence. Davis asserts that there are no findings here to support a claim of
“ ‘general unprofessional conduct.’ ” According to Davis, there “was no explanation in
the Decision as to how any of [his] conduct amounted to general unprofessional conduct,
or any analysis, other than the conclusory statement that it was based on ‘the findings and
discussions above.’ ”
C. Analysis
1. Applicable Statutes and Case Law
Section 3527, which is part of the Physician Assistant Practice Act (§ 3500.5),
provides, in pertinent part: “[t]he board may order the . . . suspension or revocation of, or
the imposition of probationary conditions upon a PA license after a hearing as required in
Section 3528 for unprofessional conduct that includes, but is not limited to, a violation of
this chapter, a violation of the Medical Practice Act, or a violation of the regulations
adopted by the board or the Medical Board of California.” (§ 3527, subd. (a).)
Section 2234, which addresses unprofessional conduct, is also part of the Medical
Practice Act (§ 2000), referred to in section 3527, subdivision (a). Among other things,
section 2234 states that unprofessional conduct includes: “[v]iolating or attempting to
violate, directly or indirectly, assisting in or abetting the violation of, or conspiring to
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violate any provision of this chapter,” gross negligence, repeated negligent acts, and the
“commission of any act involving dishonesty or corruption that is substantially related to
the qualifications, functions, or duties of a physician and surgeon.” (§ 2234, subds. (a)-
(c), (e).)
“Unprofessional conduct is that conduct which breaches the rules or ethical code
of a profession, or conduct which is unbecoming a member in good standing of a
profession.” (Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 575, fn.
omitted (Shea).)
2. Dishonesty
The governing board “may conclude that intentional dishonesty, even toward
persons outside the practice of medicine, relates to the qualifications for practicing
medicine and can be the basis for imposing discipline. [Citations.] As stated in [Griffiths
v. Superior Court (2002) 96 Cal.App.4th 757], although a ‘physician who commits
income tax fraud, solicits the subornation of perjury, or files false, fraudulent insurance
claims has not practiced medicine incompetently[,] that physician has shown dishonesty,
poor character, a lack of integrity, and an inability or unwillingness to follow the law, and
thereby has demonstrated professional unfitness meriting license discipline.’ ”
(Pirouzian v. Superior Court (2016) 1 Cal.App.5th 438, 447-448 (Pirouzian).)
In part V.C. of the Discussion, ante, we concluded that substantial evidence
supported the finding that Davis disseminated false and misleading advertising. For the
same reasons, we conclude that substantial evidence supports a finding that Davis
committed unprofessional conduct in the form of dishonesty. Furthermore, this
dishonesty, in the form of intentionally false and misleading advertising soliciting
business for the practice, was substantially related to the qualifications, functions, or
duties of a physician, Borup, and a physician assistant, Davis. They were indeed more
closely related than, for example, committing tax fraud, soliciting subornation of perjury,
and filing false, fraudulent insurance claims as in Pirouzian, supra, 1 Cal.App.5th 438.
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The ALJ’s determination that Davis “was dishonest by his false and misleading
advertising” is supported by substantial evidence, and, contrary to Davis’s contention, the
Board did not err as a matter of law in determining that he engaged in dishonesty.
3. Other Unprofessional Conduct
As stated ante, unprofessional conduct which may give rise to Board action
including license revocation includes “[v]iolating or attempting to violate, directly or
indirectly, assisting in or abetting the violation of, or conspiring to violate any provision
of this chapter,” gross negligence, repeated negligent acts, and the “commission of any
act involving dishonesty or corruption that is substantially related to the qualifications,
functions, or duties of a physician and surgeon.” (§ 2234, subds. (a)-(c), (e).)
Section 2052, addressing the unlicensed practice of medicine, is a “provision of
this chapter” within the meaning of section 2234, subdivision (a). We have found that
substantial evidence supports the conclusion that Davis engaged in the unlicensed
practice of medicine.
We have also concluded that substantial evidence supports the determinations that
Davis committed gross negligence and that he committed repeated negligent acts.
(§ 2234, subds. (b), (c).)
We also conclude that substantial evidence supports the conclusion that the
manner in which Davis established Pacific Liposculpture to facilitate his autonomous
performance of liposuction procedures and avoid any meaningful supervision by a
physician was conduct that was unbecoming of a physician assistant in good standing.
(Shea, supra, 81 Cal.App.3d at p. 575.)
4. Conclusion — Unprofessional Conduct
Substantial evidence supports the conclusion that Davis engaged in unprofessional
conduct looking at any of the aforementioned items individually, and when looking at his
conduct in the aggregate.
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VIII. The Discipline Imposed — Revocation of Davis’s License
A. Additional Background
In contemplating the appropriate measure of discipline, the ALJ stated that the
absence of prior discipline is an important mitigating circumstance, particularly where the
professional has practiced for a substantial period of time. Additionally, a “professional’s
good faith is a matter to consider in determining whether discipline should be imposed
for acts done through ignorance or mistake.” The ALJ continued: “In this case, [Davis]
has a history of discipline. His license was issued on a probationary basis because he
failed to disclose a criminal conviction for being a ‘disorderly person’ he received in
1992, when he was 18 years old. The prior discipline of [Davis’s] license was based on
conduct that was remote in time, and does not require enhanced discipline here. [¶]
However, the allegations in this case, and the findings on those allegations, are extremely
serious. [Davis] does not have a medical degree, yet he believed himself to be more
experienced, trained, and skilled than a medical doctor. Although [Davis] may be skilled
at performing liposuction surgeries, he is not a physician. [Davis] does not have the
breadth of experience and knowledge gained by going through medical school courses,
and successfully completing an internship and residency. [Davis] (and the public) were
fortunate that [he] was not faced with a life threatening medical complication that could
have presented during the procedures. [¶] Perhaps more disturbing, and certainly
reflective of [Davis’s] character and judgment, was his conduct in establishing Pacific
Liposculpture with the clear intent to practice medicine without competent supervision.
He obtained the services of a physician who had absolutely no experience in liposuctions,
who agreed not to perform any liposuctions, and who was content to stop by occasionally
to look at some records and pick up a check. And there is a serious question as to
whether Dr. Borup was competent to evaluate the standard of care represented by those
records. [¶] Although [Davis] sought a physician with little or no experience, he
disseminated, or caused to be disseminated, advertisements that misrepresented and
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exaggerated Dr. Borup’s credentials and the make-up of the Pacific Liposculpture’s
professional ‘team.’ At the time he was touting Pacific Liposculpture’s vast experience,
training and knowledge, he had only been licensed as a physician assistant in California
for three years. [Davis] testified he tried to change and/or remove any potentially
misleading information and he stated he no longer uses the title Director of Surgery.
However, his testimony lacked a sincere demonstration of admission of error, remorse or
contrition; instead he testified he took these actions because he thought the board wanted
him to, and to avoid the strict scrutiny of the board. [¶] It was suggested that [Davis] is
currently working for a board certified plastic surgeon, and is now properly supervised.
However, that physician did not appear at the hearing and no evidence was presented
about the terms and conditions of [Davis’s] current employment. [¶] . . . The board’s
highest priority in exercising its licensing, regulatory, and disciplinary functions is
protection of the public. ‘Whenever the protection of the public is inconsistent with other
interests sought to be promoted, the protection of the public shall be paramount.
[Citation.] Under the totality of the circumstances presented, the public would not be
protected if [Davis] were to retain his license. Careful thought and deliberation was
given to alternate disciplinary measures; however, the cumulative nature of [Davis’s]
conduct, his intentional scheme to circumvent the rules and regulations governing
physician assistants, and consideration of the overriding concern for public safety require
this result. Revocation is the only appropriate measure of discipline that will protect the
public.”
B. Davis’s Contentions
Davis asserts that the Board committed a manifest abuse of discretion in revoking
his license. He argues there is no evidence that he lacks competence as a physician
assistant or that any liposuction procedures were improperly performed. He contends
that the revocation of his license was “a shocking, draconian result, apparently only for
punitive purposes, and without reasonable support.” He maintains that, with proper
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supervision, he poses no danger to the public. He further asserts that most of the Board’s
accusations were found unsupported by the evidence. And he asserts that revocation is
improper because he acted in good faith.
C. Standard of Review — Discipline Imposed
“ ‘The propriety of a sanction imposed by an administrative agency is a matter
resting in the sound discretion of that agency, and that decision will not be overturned
absent an abuse of discretion. [Citations.]’ [Citations.] As to issues reviewed in the
superior court under an abuse of discretion standard, ‘the appellate court reviews the
administrative determination, not that of the superior court, by the same standard as was
appropriate in the superior court. [Citations.]’ [Citation.] [¶] Thus, when reviewing an
issue regarding the level of discipline imposed, ‘the standard of review on appeal remains
the same as it was in the superior court: the administrative agency’s exercise of
discretion as to the discipline to be imposed will not be disturbed unless a manifest abuse
of discretion is shown. [Citation.]’ [Citation.] ‘ “Neither a trial court nor an appellate
court is free to substitute its discretion for that of an administrative agency concerning the
degree of punishment imposed.” [Citations.]’ [Citation.] ‘This rule is based on the
rationale that “the courts should pay great deference to the expertise of the administrative
agency in determining the appropriate penalty to be imposed.” [Citation.]’ [Citation.]
[¶] ‘ “One of the tests suggested for determining whether the administrative body acted
within the area of its discretion is whether reasonable minds may differ as to the propriety
of the penalty imposed. The fact that reasonable minds may differ will fortify the
conclusion that there was no abuse of discretion.” ’ ” (Hanna v. Dental Bd. of California
(2012) 212 Cal.App.4th 759, 764, quoting Hughes v. Board of Architectural Examiners
(1998) 68 Cal.App.4th 685, 692 & Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494,
501.) “[T]he agency which renders the challenged decision must set forth findings to
bridge the analytic gap between the raw evidence and ultimate decision or order.”
(Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506,
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515 (Topanga).) “As stated by the United States Supreme Court, the ‘accepted ideal . . .
is that “the orderly functioning of the process of review requires that the grounds upon
which the administrative agency acted be clearly disclosed and adequately sustained.” ’ ”
(Id. at p. 516.)
D. Analysis
We cannot conclude that the Board’s determination was a manifest abuse of
discretion. We have concluded that substantial evidence supports the findings that Davis
engaged in the unlicensed practice of medicine, committed gross negligence in his post-
operative care of S.M., committed repeated negligent acts, disseminated false and
misleading advertising, and engaged in unprofessional conduct. These acts were not
isolated or unrelated. Instead, most of them, with the exception of the post-operative care
of S.M., were part of a scheme launched and carried out by Davis to establish a
liposuction practice in which he would perform liposuction procedures autonomously,
without meaningful or competent supervision. He sought out and found a physician who
had no real experience in liposuction, or surgery, and who agreed not to perform
procedures at the practice. He gave himself the title Director of Surgery, which we have
determined is misleading to consumers who, under the circumstances presented here,
could expect someone bearing that title to be a physician and surgeon. He disseminated
false and misleading advertising, strongly suggesting that Pacific Liposculpture had
various attributes it did not, including a physician performing the procedures along with a
“team of highly trained liposuctionists.”
As emphasized by the ALJ, protection of the public by statute is the highest
priority for the Board and “[w]henever the protection of the public is inconsistent with
other interests sought to be promoted, the protection of the public shall be paramount.”
(§ 3504.1.) We conclude that the Board did not commit a manifest abuse of discretion in
adopting the ALJ’s determination that, “[u]nder the totality of the circumstances
presented, the public would not be protected if [Davis] were to retain his license.
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. . .[T]he cumulative nature of [Davis’s] conduct, his intentional scheme to circumvent
the rules and regulations governing physician assistants, and consideration of the
overriding concern for public safety require this result. Revocation is the only
appropriate measure of discipline that will protect the public.”
Davis asserts that the ALJ failed to adequately consider mitigating factors. He
emphasizes: (1) the prior disciplinary investigation which was closed without any
adverse findings, (2) that Dr. Borup was “approved” as his supervising physician by
Davis’s probation monitor, (3) that, following Borup’s departure, he was properly
supervised by a highly qualified physician up to the time of the hearing, and (4) that he
made other changes responsive to the Board’s desires.
The ALJ considered the remedial steps Davis took. However, the ALJ was not
persuaded of the mitigating value of these steps, finding that Davis had not genuinely
acknowledged the error of his ways, and was not remorseful or contrite. The ALJ also
considered the issue that Davis was, at the time of the hearing, working under the
supervision of a board certified plastic surgeon and was purportedly properly supervised,
although the ALJ stated that the physician did not testify, and “no evidence was presented
about the terms and conditions of [Davis’s] current employment.”30 Furthermore, we are
30 Davis asserts that the ALJ “cut off testimony regarding [Davis’s] employment and
supervision by Dr. Robbins as having limited value.” When Davis’s attorney began to
question Davis about the background of his current supervising physician, Dr. Robbins,
the Board’s attorney objected based on relevance. Davis’s attorney stated, “I suppose it
goes to issues of potential need for discipline. Some people call it mitigation. I don’t
know what you call it, but I think what’s going on now is important for the Court in
hearing the case.” On the page cited by Davis, the ALJ allowed limited inquiry into the
matter, but stated that it did not require anything extensive. Davis’s attorney then elicited
testimony from Davis concerning Robbins’s background. However, after very limited
testimony on the matter, Davis’s attorney, not in response to any prohibition by the ALJ,
abruptly pivoted to other areas of inquiry.
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not persuaded of the mitigating value of the circumstance that a prior investigation into
the unlicensed practice of medicine involving Davis and Dr. Borup did not result in any
adverse findings. This is particularly true since the scope of that prior review is not
established in the record here. Nor are we persuaded by the prior approval of Dr. Borup
by Rodriguez as Davis’s supervisor because the evidence is not clear what Rodriguez was
told. Moreover, these matters mostly pre-date the events at issue here, and they do not
serve to mitigate the unprofessional conduct found by the ALJ. The ALJ acknowledged
the prior investigation, as well as the fact that Davis was working under the supervision
of Dr. Robbins, in her recitation of the hearing evidence. We do not agree with Davis’s
contention that the ALJ improperly failed to take mitigating factors into account.
Davis relies on Magit v. Board of Medical Examiners (1961) 57 Cal.2d 74, in
asserting that revocation of a license is improper where the practitioner acted in good
faith. However, the ALJ did not conclude that Davis acted in good faith. Thus, Magit, in
which the trial court found, on sufficient evidence, that the practitioner “acted in the
utmost good faith” (id. at p. 88), is not helpful to Davis here.
Davis also relies on Pirouzian, supra, 1 Cal.App.5th 438. In that case, the
physician did “not dispute the ALJ’s findings that he committed numerous acts of
dishonesty . . . with respect to his employment status and disability insurance benefits.”
(Id. at p. 447.) The Pirouzian court determined that revocation of the physician’s license
The Board filed a motion to strike footnote 8 from Davis’s opening brief, which
addressed Robbins’s work at the practice, because it was based on evidence outside the
administrative record. Decision on the motion was deferred pending the calendaring and
assignment of the appeal. The representations in footnote 8 are not necessary to any of
our determinations here, and we need not consider them. Thus, we need not grant the
motion to strike, as we simply disregard information not part of the administrative record
that is not necessary to our determinations. (Cf. City of Arcadia v. State Water Resources
Control Bd. (2010) 191 Cal.App.4th 156, 180 [court need not grant motion to strike
portions of plaintiffs’ brief on the ground that they constitute improper surreply where
court can simply disregard the offending contentions].)
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was not necessary to protect the public. (Id. at p. 448.) Among other things, the court
noted, “Dr. Pirouzian’s dishonest acts, while serious, were focused on his efforts to
obtain disability insurance benefits and preserve the possibility of returning to work . . . .
Significantly, there is no evidence that his dishonesty involved or affected the treatment
or care of any patient, or the billing of clients.” (Id. at p. 449.) Here, Davis’s acts
directly related to the treatment and care of patients. The Pirouzian court further stated:
“Dr. Pirouzian’s acts of dishonesty took place over a discrete period of several months in
2007, during a period of time when he was diagnosed with depression. Prior to and since
that time, there was and has been nothing (so far as the record discloses) to indicate that
Dr. Pirouzian behaved unprofessionally in any way. Indeed, his record is otherwise
unblemished.” (Ibid.) Here, Davis’s acts did not occur over such a brief period of time.
Davis relies on Topanga, supra, 11 Cal.3d 506, in asserting that there must be
established a link between the “act and fitness or competence of the health care
professional and the proposed disciplinary order the Board would impose.” As indicated
ante, there is such a link here. Here, the Board’s decision was sufficient to “bridge the
analytic gap between the raw evidence and ultimate decision or order,” as it adopted the
findings and legal conclusions made by the ALJ, which thoroughly described the
evidence and the violations, and the rationale for the measure of discipline. (Id. at
p. 515.)
We conclude that the Board did not commit a manifest abuse of discretion in
choosing to revoke Davis’s license.
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DISPOSITION
The judgment is affirmed. The Board shall recover its costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1) & (2).)
/s/
MURRAY, J.
We concur:
/s/
RAYE, P. J.
/s/
DUARTE, J.
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