Lopez v. Ledesma ( 2020 )

Filed 3/24/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MARISOL LOPEZ, B284452
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC519180)
v.
GLENN LEDESMA et al.,
Defendants and Appellants;
BERNARD KOIRE,
Defendant and Respondent.
APPEALS from a judgment of the Superior Court of Los
Angeles County. Lawrence P. Riff, Judge. Affirmed.
Esner, Chang & Boyer, Stuart Esner; Law Office of Neil M.
Howard and Neil M. Howard for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson
and Zena Jacobsen for Defendants and Appellants Glenn
Ledesma, Suzanne Freesemann and Brian Hughes.
1
Prindle, Goetz, Barnes & Reinholtz, Jack R. Reinholtz and
Douglas S. de Heras for Defendant and Respondent.
Tucker Ellis and Traci L. Shafroth for California Medical
Association, California Dental Association, California Hospital
Association, California Academy of Physician Assistants and the
American Medical Association as Amici Curiae on behalf of
Defendants and Appellants and Defendant and Respondent.
_________________________________
Marisol Lopez (Lopez) appeals from a portion of a judgment
in her favor that reduced the damages she was awarded for the
wrongful death of her daughter, Olivia Sarinanan (Olivia).1
Olivia died from malignant melanoma when she was about four
years old. Lopez prevailed in her negligence claims against three
doctors and two physician assistants. The trial court awarded
noneconomic damages of $4.25 million, but reduced those
damages to $250,000 pursuant to Civil Code section 3333.2,
subdivision (b).2
Lopez argues that the reduction in damages was improper
because the conduct of the two physician assistants who treated
Olivia—Suzanne Freesemann and Brian Hughes—fell within a
proviso excluding certain conduct from the statutory damages
1 Lopez originally filed this action before Olivia died. After
Olivia’s death, Lopez amended the complaint, asserting a
wrongful death claim.
2 Subsequent undesignated statutory references are to the
Civil Code.
2
reduction. Lopez relies on section 3333.2, subdivision (c)(2),
which provides that noneconomic damages against a health care
provider for negligent professional services is limited to $250,000
“provided that such services are within the scope of services for
which the provider is licensed and which are not within any
restriction imposed by the licensing agency or licensed hospital.”
Lopez argues that the negligence of the physician assistants is
included within the scope of this proviso because the physician
assistants acted without the supervision of a physician in
violation of the governing statutes and regulations.
We reject the argument and affirm. Our Legislature has
not given clear direction on how to apply section 3333.2,
subdivision (c)(2) to physician assistants, whose situation is
somewhat unique. The scope of a physician assistant’s practice is
defined, not by the physician assistant license itself, but by the
scope of the practice of the physician who supervises them. In
this case, the physician assistants had a nominal, but legally
enforceable, agency relationship with supervising physicians, but
received little to no actual supervision from those physicians.
In the absence of any clear legislative statement on the
issue, we conclude that a physician assistant acts within the
scope of his or her license for purposes of section 3333.2,
subdivision (c)(2) if he or she has a legally enforceable agency
agreement with a supervising physician, regardless of the quality
of actual supervision. A contrary rule would make the damages
reduction in section 3333.2 dependent on the adequacy of
supervision. Such a rule would be uncertain and difficult to
define, and would contravene the purpose of section 3333.2 to
encourage predictability of damages to reduce insurance
premiums.
3
BACKGROUND
1. Law Governing Physician Assistants
The Legislature established the position of physician
assistant out of “concern with the growing shortage and
geographic maldistribution of health care services in California.”
(Bus. & Prof. Code, § 3500.)3 Its purpose in doing so was to
encourage the “effective utilization of the skills” of physicians by
enabling them to work with physician assistants. (Ibid.)
A physician assistant must pass a licensing examination after
completing an approved program and must practice under the
supervision of a supervising physician. (Bus. & Prof. Code,
§§ 3502, 3519.)4 Under the governing regulations, the scope of
3 The Legislature enacted the current Physician Assistant’s
Practice Act in 1975 (the Act). (Stats. 1975, ch. 634, § 2, p. 1371.)
It replaced the Physician’s Assistant Law, which the Legislature
enacted in 1970 with the same legislative purpose. (Stats. 1970,
ch. 1327, § 2, p. 1327.)
4 A number of relevant sections in the Business and
Professions Code were amended effective January 1, 2020,
pursuant to Senate Bill No. 697 (2019–2020 Reg. Sess.) (SB 697).
(See Stats. 2019, ch. 707.) We apply the law as it existed at the
time of the relevant events. Thus, citations in this opinion are to
the prior versions of the relevant statutes, effective until
January 1, 2020. To avoid confusion, we use the present tense in
identifying the relevant provisions of law, even if those provisions
have now been altered by amendment, and we note the changes
made by those amendments where appropriate.
The source of SB 697 was the California Academy of
Physician Assistants. (See Sen. Rules Com., Off. of Sen. Floor
Analysis, 3d reading analysis of Sen. Bill No. 697 (2019–2020
Reg. Sess.) as amended Apr. 24, 2019, p. 1.) The legislative
4
services a physician assistant is permitted to provide is defined
primarily through the physician assistant’s relationship with his
or her supervising physician. “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.,
history reflects that a primary purpose of the bill was to “align
the supervisory and practice environments” between nurse
practitioners and physician assistants to “create a level hiring
field.” (Id. at p. 6.) To that end, the bill “[r]evises the Act’s
Legislative intent to strike references to [physician assistants’]
delegated authority and instead emphasizes coordinated care
between healthcare professionals.” (Id. at p. 2.) The bill also
eliminated a number of mandated supervisory procedures,
leaving the details of supervision to a practice agreement. (Id. at
pp. 1–2.)
We need not, and do not, attempt to analyze the effect of
the specific amendments that SB 697 implemented. However, we
note that the bill does not affect the basic structure of the
physician/physician assistant relationship as is relevant to this
opinion. Under the amended statutes, a physician assistant is
still required to render services “under the supervision of a
licensed physician,” and such supervision means that the licensed
physician “accepts responsibility for” the medical services that a
physician assistant provides. (Bus. & Prof. Code, §§ 3501,
subd. (f), 3502, subd. (a)(1).)
The amendments in SB 697 further highlight the need for
legislative guidance in understanding the relationship between
the Act and the damage limitation in section 3333, subdivision
(c)(2).
5
tit. 16, § 1399.540, subd. (a).) During the relevant time period,
the formal writing defining the services a physician assistant
may perform was called a “delegation of services agreement”
(DSA). (Cal. Code Regs., tit. 16, § 1399.540, subd. (b).)5
2. Olivia’s Disease and Treatment
No party disputes the trial court’s factual findings, and we
therefore rely on the trial court’s statement of decision to
summarize the pertinent facts.
Olivia was born in late 2009. When she was about seven or
eight months old, she developed a spot on her scalp. Her primary
care physician referred Olivia’s mother, Lopez, to a dermatology
clinic owned by Dr. Ledesma.
Freesemann worked as a physician assistant at the clinic.
She saw Olivia on December 8, 2010, and after that visit
requested approval from the insurer for an “excision and biopsy.”
Hughes, who also worked at the clinic as a physician
assistant, saw Olivia again on January 3, 2011, and performed a
“shave biopsy” of the scalp lesion. The doctor who examined the
biopsied tissue found no malignancy.6 Hughes saw Olivia again
5 Under current law, the governing agreement is now called
a “practice agreement.” (Bus. & Prof. Code, § 3501, subd. (k).)
However, references to a delegation of services agreement in any
other law “shall have the same meaning as a practice
agreement.” (Ibid.) And a delegation of services agreement in
effect prior to January 1, 2020, is deemed to satisfy the current
requirements for a practice agreement. (Bus. & Prof. Code,
§ 3502.3, subd. (a)(3).)
6The court found for the examining doctor, Soeprono, on
Lopez’s negligence claim against him.
6
on January 17, 2011, noted that the biopsy wound was healing
well, and told Lopez that there was nothing to worry about.
That spring and early summer Lopez noticed that the
lesion was growing back. She returned to the Ledesma clinic in
June and saw Freesemann. Freesemann assessed the new
growth as “warts” and requested authorization to burn off the
growth with liquid nitrogen. Lopez returned with Olivia on
July 27 to have the growth removed.
Lopez returned to the clinic again on September 9 after
observing that the lesion was “bigger, darker and not uniform in
color.” Hughes examined Olivia and concluded again that the
growth was warts. He referred Lopez to a general surgeon to
have the growth removed. Dr. Koire reviewed and countersigned
the chart note from this visit several months later.
A general surgeon excised the lesion on December 23, 2011,
and provided the tissue to a pathologist, Dr. Pocock. Pocock did
not find any malignancy.7
In early 2013 Olivia developed a bump on her neck and
began to complain of neck pain. The surgeon removed the neck
mass and referred Lopez to an oncologist at Children’s Hospital
of Los Angeles. The oncologist diagnosed metastatic malignant
melanoma. Olivia died in early 2014, when she was a little over
four years old.
7 The trial court found that Pocock was negligent in this
analysis.
7
3. The DSA’s concerning Freesemann and Hughes
A. Freesemann
Prior to 2010, Marshall Goldberg, a dermatologist,
practiced with Ledesma. Freesemann had an unsigned and
undated DSA with Goldberg, but by the time of the relevant
events Goldberg was no longer affiliated with any Ledesma
facility and Freesemann knew that Goldberg was not her
supervising physician. The trial court found that Freesemann’s
DSA with Goldberg “may never have been valid but certainly was
not at the time of [Freesemann’s] clinical encounters with Olivia.”
Freesemann also had a DSA with Ledesma dated
January 1, 2009. The DSA was never revoked, and thus the trial
court found that it was “nominally” in effect during Freesemann’s
visits with Olivia.
Ledesma testified that he had become disabled and unable
to practice medicine in 2010. He denied that he was
Freesemann’s supervising physician; he claimed that Dr. Koire
performed that role. Freesemann and Koire disputed that claim
and testified that Ledesma was Freesemann’s supervising
physician.
B. Hughes
Hughes had a signed DSA with Koire. Although the DSA
was undated, the trial court found that the DSA created a
physician assistant/supervising physician relationship between
Hughes and Koire. Hughes and Koire both testified that they
had such a relationship.
4. Lack of Supervision of Freesemann and Hughes
A. Freesemann
Despite his formal DSA with Freesemann, Ledesma was
not actually fulfilling any supervisory responsibilities during the
8
relevant events. Ledesma had “removed himself from the
practice of medicine.” The court also found it “highly likely if not
certain that Ms. Freesemann knew that Dr. Ledesma was not
fulfilling his statutory obligations.”
The court found that Ledesma breached his supervisory
obligations imposed by the governing regulations by: (1) failing
to be available in person or electronically for consultation;
(2) failing to select for review charts on cases that presented the
most significant risk to the patient; and (3) failing to review and
countersign within 30 days a minimum 5 percent sample of
medical records.
The court found that Freesemann breached her regulatory
obligations by failing to operate under required supervisory
guidelines, which the court found were likely not even in
existence. Freesemann also failed to consult with a physician
regarding tasks and problems that she determined exceeded her
level of competence. Indeed, the court found that Freesemann
“consulted with no physician affiliated with the Ledesma clinics
on any topic at all.” Freesemann was “acting autonomously and
knew it.”
B. Hughes
The court found that Koire was not available at all times
for consultation when Hughes was seeing patients. The court
also found it likely that Hughes knew Koire was not meeting his
obligations to select difficult cases for chart review and reviewing
a sample of at least 5 percent of cases within 30 days. In fact,
Koire had had a stroke before meeting Hughes and was “no
longer engaged in active practice.”
Hughes also did not operate under required supervisory
guidelines. The court concluded that Hughes “engaged in his
9
practice of dermatology without adequate . . . supervision.” The
court found it likely that Hughes knew he was “functioning
autonomously.”
5. Liability and Damages
The case was tried to the court over 14 days. The trial
court found in favor of Lopez on her negligence claims against
Freesemann and Hughes. The court found that their conduct fell
below the standard of care in a number of respects concerning the
failure to take adequate steps to diagnose Olivia’s condition and
to seek guidance from a physician.
The court found that Ledesma and Koire were derivatively
liable for the physician assistants’ negligence on an agency
theory. The court based its finding on several grounds. First, the
court concluded that the DSA’s established a contractual agency
relationship. The DSA’s recited that their purpose was to
“delegate the performance of certain medical services” to the
physician assistants and identified the supervising physician as
“responsible for the Patients cared for by” the physician
assistant.8
Second, the court concluded that the governing regulations
created an agency relationship. The court relied upon
regulations, discussed further below, that explicitly state that a
physician assistant acts as an agent of the supervising physician,
and that the supervising physician has continued responsibility
for patients that the physician assistant sees.
8The parties did not include the DSA’s themselves in the
appellate record. The quoted language is cited in the trial court’s
statement of decision.
10
Finally, the court concluded that Ledesma was liable under
an ostensible agency theory because he created the impression
that Hughes and Freesemann were acting under his direction.
The court also found in favor of Lopez on her negligence
claim against Pocock.9
The court awarded Lopez economic damages in the amount
of $11,200, and noneconomic damages of $4.25 million. Pursuant
to section 3333.2, subdivision (b), the trial court reduced the
noneconomic damages to $250,000. The trial court concluded
that Lopez’s claims did not fall within the proviso in section
3333.2, subdivision (c)(2). The court rejected the argument that
the physician assistants violated licensing restrictions by failing
to comply with the governing regulations. The court concluded
that the language in the proviso excluding conduct that violates a
licensing restriction applies only to a “particularized restriction
previously imposed” by the licensing agency.
DISCUSSION
1. Standard of Review
The sole issue on these appeals is whether the limitation on
the amount of damages for noneconomic losses in medical
malpractice actions under section 3333.2 applies to an action
against a physician assistant who is only nominally supervised
by a doctor. Because this is a purely legal issue, we review it
9Lopez did not appeal from the judgment with regard to
Pocock. However, Pocock filed a respondent’s brief on
September 6, 2018. Pursuant to Lopez’s request, Pocock was
dismissed from the appeal on October 9, 2019.
11
de novo. (Aryeh v. Canon Business Solutions, Inc. (2013) 55
Cal.4th 1185, 1191.)10
2. The Limitation on Noneconomic Damages in
Section 3333.2 Applies to an Action for
Professional Negligence Against a Physician
Assistant Who Has a Legally Enforceable
Agency Relationship with a Supervising
Physician
A. The limitation on noneconomic damages
under the Medical Injury Compensation
Reform Act (MICRA)
The Legislature enacted MICRA in 1975 (Stats. 1975,
Second Ex. Sess. 1975–1976, chs. 1, 2, pp. 3949–4007) to address
“serious problems that had arisen throughout the state as a
result of a rapid increase in medical malpractice insurance
premiums.” (American Bank & Trust Co. v. Community Hospital
(1984) 36 Cal.3d 359, 363.) The rapid increase in the cost of
medical malpractice insurance was “threatening to curtail the
availability of medical care in some parts of the state and
creating the very real possibility that many doctors would
practice without insurance, leaving patients who might be
injured by such doctors with the prospect of uncollectible
judgments.” (Fein v. Permanente Medical Group (1985) 38 Cal.3d
137, 158 (Fein).) To meet this problem, the Legislature enacted a
10 Because of our resolution of this issue, we do not
consider defendants’ appeal. Defendants brought that appeal
conditionally, to be considered only in the event we reverse the
trial court’s ruling that the damages limitation in section 3333.2
applies.
12
number of different provisions “affecting doctors, insurance
companies and malpractice plaintiffs.” (Id. at p. 159.)
One of those provisions is the limitation on noneconomic
damages in section 3333.2. “One of the problems identified in the
legislative hearings [preceding MICRA] was the unpredictability
of the size of large noneconomic damage awards, resulting from
the inherent difficulties in valuing such damages and the great
disparity in the price tag which different juries placed on such
losses.” (Fein, supra, 38 Cal.3d at p. 163.) Section 3333.2
addressed that problem by imposing a cap on such damages.
Civil Code section 3333.2 states that, in any action for
“injury against a health care provider based on professional
negligence,” the noneconomic damages that an injured plaintiff
may recover are limited to $250,000. (Civ. Code, § 3333.2, subds.
(a) & (b).) A “health care provider” includes any person who is
licensed under division 2 of the Business and Professions Code
(which includes physician assistants). (Bus. & Prof. Code, §§
3500–3546.)
Section 3333.2 defines “professional negligence” as “a
negligent act or omission to act by a health care provider in the
rendering of professional services, which act or omission is the
proximate cause of a personal injury or wrongful death, provided
that such services are within the scope of services for which the
provider is licensed and which are not within any restriction
imposed by the licensing agency or licensed hospital.” (§ 3333.2,
subd. (c)(2), italics added.)
Our Supreme Court interpreted an identical proviso in
Waters v. Bourhis (1985) 40 Cal.3d 424 (Bourhis). The plaintiff in
that case (Waters), a former client of the defendant attorney,
claimed that MICRA’s limitation on the amount of contingent
13
attorney fees contained in Business and Professions Code section
6146 applied to the attorney’s fee in a prior case in which the
attorney had represented Waters. The prior case was an action
against Waters’s former psychiatrist based upon allegations that
the psychiatrist had exploited his professional relationship with
Waters to engage in sexual conduct with her. The case settled
before trial, and the attorney retained a higher percentage of the
settlement amount than he would have been entitled to retain if
the action were covered by the MICRA contingent fee limitation.
The trial court granted summary judgment in favor of the
attorney, concluding that “ ‘most of the damage was outside the
scope of professional negligence under which the attorney’s fee is
limited.’ ” (Id. at 431.)
One of the attorney’s arguments on appeal was that the
summary judgment could be sustained on the ground that the
proviso in the definition of professional negligence in Business
and Professions Code section 6146 (which is identical in
substance to the definition in Civil Code section 3333.2) meant
that the prior action was not for professional negligence. The
attorney argued that the psychiatrist’s misconduct was outside a
“ ‘restriction imposed by the licensing agency’ ” because sexual
misconduct was a basis for disciplinary action against the
psychiatrist. (Bourhis, supra, 40 Cal.3d at pp. 435–436.)
The Supreme Court rejected the argument. The court
explained that, “[i]n our view, this contention clearly
misconceives the purpose and scope of the proviso which
obviously was not intended to exclude an action from section
6146—or the rest of MICRA—simply because a health care
provider acts contrary to professional standards or engages in one
of the many specified instances of ‘unprofessional conduct.’
14
Instead, it was simply intended to render MICRA inapplicable
when a provider operates in a capacity for which he is not
licensed—for example, when a psychologist performs heart
surgery.” (Bourhis, supra, 40 Cal.3d at p. 436.) The court
concluded that the psychiatrist’s conduct “arose out of the course
of the psychiatric treatment he was licensed to provide.” (Ibid.)11
The court in Prince v. Sutter Health Central (2008) 161
Cal.App.4th 971 (Prince) applied this interpretation of the
proviso in concluding that a social worker did not act outside the
scope of a “restriction imposed by the licensing agency” while
working toward her licensure under supervision. The court held
that the social worker was a “health care provider” under Civil
Code section 3333.2 because she was lawfully practicing under a
11 The trial court here concluded that this discussion in
Bourhis was dicta. We disagree. The court in Bourhis ultimately
held that the MICRA limitation on contingent attorney fees did
not apply to a recovery that “may be based on a non-MICRA
theory” (such as the theory of intentional tortious conduct alleged
against the psychiatrist) and remanded the case for the trial
court to consider whether the attorney had received appropriate
informed consent from Waters to file a hybrid MICRA/non-
MICRA action. (Bourhis, supra, 40 Cal.3d at pp. 437–438.)
There would have been no need to remand the case for that
determination if the court had interpreted the proviso in the
manner the defendant attorney urged. Thus, the court’s holding
on the scope of the proviso was a ground for its ultimate decision.
In any event, even if the court’s conclusion was dicta, our
Supreme Court’s dicta is “highly persuasive,” and we will
generally follow it unless there is a compelling reason not to do
so. (See Gonzalez v. Mathis (2018) 20 Cal.App.5th 257, 272,
fn. 1.) We see no such reason here.
15
registration permitting her to practice under supervision while
working toward licensure. (Id. at pp. 974, 977.) The court
rejected the argument that the social worker acted outside the
scope of a “restriction” on her ability to practice because she
violated an obligation to disclose that she was “ ‘unlicensed and
. . . under the supervision of a licensed professional.’ ” (Id. at p.
977, quoting Bus. & Prof. Code, § 4996.18, subd. (h).) The court
held that: (1) the disclosure statute was not “imposed by” the
licensing agency as stated in the proviso; and (2) the Supreme
Court rejected a similar claim in Bourhis. Thus, consistent with
Bourhis, the court in Prince concluded that the social worker’s
violation of a statutory professional standard did not mean she
was acting outside the scope of a licensing restriction for
purposes of the damages limitation in Civil Code section
3333.2.12 (Prince, at pp. 977–978.)
12 The court also rejected the argument that the social
worker was not “ ‘receiving the supervision required by law.’ ”
(Prince, supra, 161 Cal.App.4th at p. 977.) The argument was
apparently based on evidence showing that she was receiving
group rather than individual supervision. The court concluded
that the type of supervision did not “change the nature of the
services” that the social worker provided. (Id. at p. 978) The
court did not explain that conclusion, and it is therefore unclear
whether the court intended to address the issue that we face
here, i.e., whether inadequate supervision means that a licensed
professional required by law to act under supervision is
practicing outside the scope of a licensing restriction.
16
B. The damages limitation as applied to
physician assistants
1. The nature of the problem
Applying the limitation on damages in section 3333.2 to
physician assistants presents a unique difficulty. Unlike, for
example, the psychologist that our Supreme Court mentioned in
Bourhis, who clearly is not licensed to perform heart surgery, a
physician assistant’s area of practice is not just defined by the
license that he or she receives.13 Rather, it is primarily defined
by his or her supervising physician. A physician assistant is
permitted to practice in the area in which the supervising
physician practices, performing those tasks that the supervising
physician delegates. (Cal. Code Regs., tit. 16, § 1399.545, subd.
(b) [“A supervising physician shall delegate to a physician
assistant only those tasks and procedures consistent with the
13 As counsel for amici pointed out at oral argument, the
governing law does identify some situations in which a physician
assistant would clearly act outside the “scope of services for
which the provider is licensed.” (Civ. Code, § 3333.2, subd. (c)(2).)
For example, Business and Professions Code section 3502,
subdivision (d) states that the law governing physician assistants
does not authorize them to perform medical services in several
fields, including dentistry and optometry. And California Code of
Regulations, title 16, section 1399.541 lists many medical tasks
that physician assistants may perform, but does not include in
that list surgical procedures requiring general anesthesia
performed outside the presence of a supervising physician. (Cal.
Code Regs., tit. 16, § 1399.541, subd. (i)(1).) A physician
assistant who performs such unauthorized tasks would be
analogous to the psychologist who performs heart surgery.
17
supervising physician’s specialty or usual and customary practice
and with the patient’s health and condition”].) Thus, a physician
assistant’s practice area is potentially as broad as that of any
physician.
But, by the nature of his or her role as an assistant, a
physician assistant’s practice is limited in a way that a
physician’s is not. Clearly, a physician assistant is not permitted
to practice without supervision. Business and Professions Code
section 3502 permits physician assistants to perform medical
services only when the services are rendered “under the
supervision of a licensed physician and surgeon.” (Bus. & Prof.
Code, § 3502, former subd. (a), now subd. (a)(1).) The question for
purposes of the damages limitation in Civil Code section 3333.2 is
what “under the supervision of” means in this context.14
14 As the dissent points out, Business and Professions Code
section 3501 states that, for purposes of the chapter governing
physician assistants, the term “supervision” means that “a
licensed physician and surgeon oversees the activities of, and
accepts responsibility for, the medical services rendered by a
physician assistant.” (Bus. & Prof. Code, § 3501, former subd.
(6), now subd. (f)(1).) As amended by SB 697, this definition is
even more specific, requiring that the supervising physician be
available by telephone or other electronic communication during
a patient examination and requiring “[a]dherence to adequate
supervision as agreed to in the practice agreement.” (Bus. &
Prof. Code, § 3501, subd. (f)(1)(A).) Thus, a supervising physician
clearly undertakes the obligation to “oversee” the medical
services provided by a physician assistant. However, for the
reasons discussed below, we do not agree that the existence of
this obligation means that a physician assistant acts outside the
scope of his or her license whenever the obligation is not met.
18
It seems clear that a physician assistant who practices
without any relationship at all with a supervising physician
would be practicing “outside the scope of services for which the
provider is licensed.” (§ 3333.2, subd. (c)(2).) Without such a
relationship, the physician assistant would have no delegated
tasks that he or she is authorized to perform. (See Cal. Code
Regs., tit. 16, § 1399.540, subd. (a).)
However, where, as here, a physician assistant establishes
a legal relationship with a supervising physician through a DSA,
but in practice receives no supervision, is the physician assistant
practicing outside the scope of licensed services or in violation of
a “restriction imposed by the licensing agency”? If so, any
negligent medical care that the physician assistant provides is
not “professional negligence” under section 3333.2, subdivision
(c)(2), and the limitation on noneconomic damages in that section
does not apply. If not, then the physician assistant’s negligence
is “professional negligence” to which the MICRA damages
limitation applies.
Our Legislature has not provided an answer to this
question, which raises policy issues that the Legislature is best
equipped to consider. However, in the absence of clear legislative
direction, we must do our best to apply the statute based upon
the Legislature’s probable intent. We must construe section
3333.2 in this context in a manner that “comports most closely
with the apparent intent of the Legislature, with a view to
Doing so would conflict with the purpose of section 3333.2 and
would lead to results that the Legislature would not have
intended.
19
promoting rather than defeating the general purpose of the
statute, and avoid an interpretation that would lead to absurd
consequences.” (People v. Jenkins (1995) 10 Cal.4th 234, 246.)
2. The significance of an agency
relationship
For the reasons discussed below, we conclude that the
presence of a legal agency relationship between a physician
assistant and a supervising physician is the dispositive factor in
determining whether the physician assistant was acting outside
the scope of licensed services for purposes of section 3333.2,
subdivision (c)(2). If an otherwise qualified physician assumes
the legal responsibility of supervising a physician assistant, that
physician assistant practices within the “scope of services”
covered by the supervising physician’s license, even if the
supervising physician violates his or her obligation to provide
adequate supervision.
First, the regulatory scheme suggests that the supervising
physician, not the physician assistant, is the relevant “health
care provider” for purposes of determining whether particular
services are within the scope of a license under Civil Code section
3333.2. The supervisory physician is tasked with the
responsibility to “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).) Moreover, once a supervisory
relationship is established, the physician assistant acts as the
20
agent of the supervising physician.15 The regulations go so far as
to state that the acts of the physician assistant are deemed to be
the acts of the supervising physician: “Because physician
assistant practice is directed by a supervising physician, and a
physician assistant acts as an agent for that physician, the orders
given and tasks performed by a physician assistant shall be
considered the same as if they had been given and performed by
the supervising physician.” (Cal. Code Regs., tit. 16, § 1399.541.)
Thus, once a physician undertakes to supervise a physician
assistant and forms an agency relationship with the assistant,
the scope of the supervising physician’s license (and any
restrictions on it) define the tasks that the assistant may
perform.
Second, a standard for determining whether a physician
assistant is acting outside the scope of his or her license that is
based on the adequacy of supervision rather than the legal
responsibility to supervise would make the MICRA damages
15 At the time of the relevant events, former Business and
Professions Code section 3501, subdivision (b) specifically stated
that a physician assistant “acts as an agent of the supervising
physician when performing any activity authorized by this
chapter or regulations adopted under this chapter.” Senate Bill
No. 697 deleted that provision, and instead implemented a new
section providing in part that “[a] practice agreement may
designate a [physician assistant] as an agent of a supervising
physician and surgeon.” (Bus. & Prof. Code, § 3502.3, subd.
(a)(4).) The intent of this change is unclear. Under the amended
law, supervision still means that the supervising physician
“accepts responsibility for” the medical services provided by a
physician assistant. (Bus. & Prof. Code, § 3501, subd. (f).)
21
limitation dependent on whether a supervising physician acts
contrary to professional standards. The regulations impose a
variety of specific supervisory responsibilities on a supervising
physician, including the responsibility to: (1) be available in
person or electronically when the assistant is caring for patients;
(2) determine the physician assistant’s competence to perform the
designated tasks; (3) establish written guidelines for supervision
that address patient examination by the supervising physician,
countersignature on medical records, and detailed protocols for
medical tasks; (4) review a sample of medical records of patients
that a physician assistant treats; and (5) follow the progress of
patients and “make sure that the physician assistant does not
function autonomously.” (Cal. Code Regs., tit. 16, § 1399.545,
subds. (a), (c), (e) & (f).) Violation of these regulations by a
supervising physician can constitute unprofessional conduct
leading to limitations on the right to supervise a physician
assistant. (Bus. & Prof. Code, § 3527, subd. (c).)16
A rule that would exclude a physician assistant’s conduct
from the damages limitation in MICRA simply because a
supervising physician violates some or all of the governing
regulations would contravene our Supreme Court’s decision in
Bourhis that conduct is not outside the scope of a license merely
because it violates professional standards. (See Bourhis, supra,
40 Cal.3d at p. 436.) As mentioned, the court in Prince similarly
16We take no position as to whether or not this
consequence or any other discipline for unprofessional conduct
would be appropriate for the supervising physicians here. (See
Bus. & Prof. Code, § 2234 [identifying unprofessional conduct,
including gross negligence and “repeated negligent acts”].)
22
concluded that, under the analysis in Bourhis, a social worker’s
violation of a statute requiring her to disclose that she was
unlicensed and acting under supervision did not mean she was
acting outside the scope of a license restriction. (See Prince,
supra, 161 Cal.App.4th at pp. 977–978.)17
Third, a standard based on the adequacy of supervision
would be difficult to define. How much supervision must exist
before it is more than merely nominal? And how would the
decision concerning the adequacy of supervision be made?18 This
17 The trial court here relied on the second clause of the
proviso in section 3333.2, subdivision (c)(2). As mentioned, the
court concluded that a “restriction imposed by the licensing
agency or licensed hospital” applies only to a “particularized
restriction” previously imposed on an individual physician
assistant. In light of our ruling, we do not need to consider the
specific meaning of this clause and whether it could apply in
some circumstances to a “restriction” that applies more broadly
than a specific limitation on a particular licensed provider. It is
sufficient for our ruling to conclude that, consistent with our
Supreme Court’s decision in Bourhis, the “restriction” mentioned
in this clause must be a limitation on the scope of a provider’s
practice beyond simply the obligation to adhere to standards of
professional conduct. (See Bourhis, supra, 40 Cal.3d 424.)
18 For example, would a special jury finding on whether
supervision was merely nominal be necessary in a jury trial?
Would an allegation of some conduct beyond mere negligence be
necessary to support such a finding? If so, how would that
conduct be defined, and would it require a finding of direct
liability against the supervising physician(s)? Here, the
operative form complaint alleged only medical malpractice (and
wrongful death) with a single cause of action for “general
23
is an extreme case in which actual supervision was essentially
nonexistent. But even here, there was some evidence that one of
the supervising physicians reviewed and countersigned at least
one chart note containing a treatment plan. Review of one chart
may not be enough to constitute actual supervision, but
presumably one failure to comply with a governing regulation
would also not be enough to make supervision merely nominal.
Requiring a fact finder to determine in each case whether a
physician’s supervision of a physician assistant was sufficient for
purposes of applying the MICRA damages limitation risks
creating the kind of uncertainty in predicting medical
malpractice damage awards that the Legislature enacted MICRA
in part to prevent. (See Fein, supra, 38 Cal.3d at p. 163.)19
Fourth, a rule that treats a physician assistant’s conduct as
outside the scope of his or her license whenever supervision is
negligence.” And, as mentioned, the trial court found the
supervising physicians only derivatively liable by virtue of their
responsibility for the physician assistants’ conduct.
19 Lopez argues that a physician assistant acting without
the supervision required by law is “tantamount to the unlawful
practice of medicine without a license.” We find the comparison
unhelpful. The physician assistants here had a license. They
were required to demonstrate some level of training and
proficiency to obtain that license. The issue is whether they
acted outside the scope of that license in practicing without
adequate supervision. Any licensed professional who practices
medicine outside the scope of his or her license in some sense is
engaged in the “unlawful practice of medicine without a license.”
But calling it that does not help in defining the scope of the
relevant license for purposes of the MICRA damages limitation.
24
inadequate would create inconsistencies in damages depending
upon whether a patient sues the physician assistant or the
supervising physician. Here, the trial court ruled that the
supervising physicians were liable for the negligence of the
physician assistants under agency principles. But supervising
physicians who fail to supervise a physician assistant adequately
might also be directly liable for their own negligence. (Delfino v.
Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815
(Delfino) [“Liability for negligent supervision and/or retention of
an employee is one of direct liability for negligence, not vicarious
liability”].20 A supervising physician’s negligence in supervising
a physician assistant who commits malpractice would be within
the scope of the supervising physician’s “rendering of professional
services.” It would therefore be subject to the damages limitation
in section 3333.2. (Cf. Bell v. Sharp Cabrillo Hosp. (1989) 212
Cal.App.3d 1034, 1048–1052 [the MICRA damages limitation
applied to a hospital’s alleged negligence in reviewing the
competence of a staff surgeon].) Permitting an unlimited award
of noneconomic damages against the physician assistant and only
20 In concluding that an employer may be liable for
negligent hiring, the court in Delfino followed the rule described
in section 213 of the Restatement Second of Agency. (Delfino,
supra, 145 Cal.App.4th at p. 815.) That section explains that the
principle of direct liability is based upon the principle/agent
relationship: “A person conducting an activity through servants
or other agents is subject to liability for harm resulting from his
conduct if he is negligent or reckless” “in the supervision of the
activity.” (Rest.2d Agency, § 213, subd. (c).) That principle
applies to a supervising physician as it would to an employer.
25
a limited award against the supervising physician based upon the
same harm would be both irrational and inconsistent with
MICRA’s goal of predictability in damage awards.
Finally, a bright-line rule that the limitation on
noneconomic damages in section 3333.2 applies to actions for
professional negligence against a physician assistant once he or
she has formed a legal agency relationship with a supervising
physician is consistent with the principle that “MICRA provisions
should be construed liberally in order to promote the legislative
interest in negotiated resolution of medical malpractice disputes
and to reduce malpractice insurance premiums.” (Preferred Risk
Mutual Ins. Co. v. Reiswig (1999) 21 Cal.4th 208, 215.) As the
trial court here correctly recognized, once an agency relationship
is formed, both the supervising physician and the physician
assistant are legally responsible for malpractice that the
physician assistant commits during the relationship. The risk of
such malpractice therefore presumably affects the malpractice
premiums of the supervising physician as well as the physician
assistant. The supervising physician’s risk (and therefore his or
her insurance premiums) would be increased if the MICRA
damages limitation did not apply whenever there is a finding
that his or her supervision of a physician assistant was
inadequate.21
21 We do not intend to diminish the importance of the other
policy at issue here of providing adequate compensation to
injured parties. This case tragically illustrates how the
imposition of the MICRA limits (unchanged since the 1970’s)
woefully fails to adequately compensate the plaintiff for the
damages sustained by this professional negligence.
26
If the Legislature disagrees with the line that we draw
here, it is of course free to establish a different rule. However,
absent further legislative direction, the rule that we articulate in
this opinion should best serve the goals of predictability of
damage awards, consistency in the application of the damages
limitation, and the liberal construction of MICRA’s provisions.
DISPOSITION
The judgment is affirmed. Defendants are entitled to their
costs on appeal.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
I concur:
CHAVEZ, J.
27
Filed 3/24/20
Lopez v. Ledesma, B284452
ASHMANN-GERST, J.—Dissenting
I respectfully dissent.
Neither Suzanne Freesemann (Freesemann) nor Brian
Hughes (Hughes) was supervised when they provided care to
Olivia Sarinanan (Olivia). I conclude they were not providing
services within the scope of services for which they were licensed
for purposes of Civil Code section 3333.2, subdivision (c)(2) and
MICRA1 does not apply.
I. The Trial Court’s Findings.
A. Background.
Freesemann and Hughes are physician assistants who
must work under a supervising physician. Both a physician
assistant and a supervising physician must sign and date a
delegation of services agreement (DSA) and practice guidelines.
A supervising physician “must be available in person or by
electronic communications at all times when the [physician
assistant] is caring for patients. Retrospectively, the [supervising
physician] is to perform a chart review of at least 5% of the
1 MICRA is an acronym for the Medical Injury Compensation
Reform Act.
1
medical records of patients treated by the [physician assistant]
within 30 days of such treatment and which treatment, in the
[supervising physician’s] opinion, represents the most significant
risk to the patient due to the diagnosis, problem, treatment or
procedure.”
B. Freesemann Functioned Autonomously.
Dr. Glenn Ledesma practiced in dermatology for over
28 years. “For some period before 2010, [Dr.] Marshall Goldberg,
a dermatologist, practiced with Dr. Ledesma.”
In 2010, Dr. Ledesma operated dermatology clinics and
held himself out as the medical director. He testified that he
became disabled and unable to practice medicine in 2010. Also,
he testified that even though he was still involved in operating
his clinics “in a business sense, he was no longer in active
practice as a physician[.]”
Freesemann treated Olivia on December 8, 2010, June 11,
2011, and July 27, 2011. She claimed she had a DSA with
Dr. Goldberg, but he was “no longer affiliated” with the practice
in late 2010. “The DSA between Dr. Goldberg and [Freesemann]
. . . had no application or continued force[.]” Freesemann had a
DSA with Dr. Ledesma dated January 1, 2009. Their DSA was
“nominally (but not effectively . . .) in effect” when she first saw
Olivia. “Dr. Ledesma was no longer fulfilling any . . . supervisory
obligations under the January 1, 2009 DSA. . . . He had removed
himself from the practice of medicine.” The trial court found that
it was highly likely that Freesemann knew that Dr. Ledesma was
not fulfilling his statutory obligations. “The evidence shows
(1) that he was not available in person or by electronic
communications at all times when [Freesemann] was caring for
2
Olivia, a violation of 16 CCR Section 1399.545(a); (2) that he was
not selecting for chart review those cases in which she had
rendered care and which represented in his judgment by
diagnosis, problem, treatment or procedure the most significant
risk to the patient, [in] violation of 16 CCR Section
1399.545(e)(3); and (3) that he was not within 30 days reviewing,
countersigning and dating a minimum of [a] 5% sample of
medical records of patients treated by [Freesemann] under
protocols, a violation of 16 CCR Section 1399.545(e)(3).”
Dr. Ledesma “testified that he was not doing so, and the [trial
court] believes him.”
The trial court found that Freesemann “violated 16 CCR
Section 1399.540(d) which 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.’ [Freesemann], the evidence shows, at the time of
[her] clinical encounters with Olivia, consulted with no physician
affiliated with the Ledesma clinics on any topic at all. There are
only two possible explanations for her not doing so. One is that
she never once determined that anything she was encountering
in her practice exceeded her level of competence. That
explanation requires [Freesemann] to have had a remarkably
generous subjective (and objectively unrealistic) belief in her
competence. The other explanation is that there was simply no
[supervising physician] available to her. The [trial court] finds
the second alternative to be highly likely. Dr. Goldberg was gone
[and] Dr. Ledesma was absent and unavailable. . . . Evaluating
her credibility, the [trial court] finds [Freesemann] a reality-
based person possessed of common sense. The [trial court] does
3
not think she actually believed in her own infallibility. . . . She
did decide, however, to practice without [a supervising physician]
and without adequate consultation with any physicians. The
[trial court] finds it is a virtual certainty she knew she was doing
so in obvious violation of the regulations. She was functioning
autonomously and she knew it. This was a violation of 16 CCR
Section 1399.545(f).” (Fn. omitted.) At the time of her clinical
encounters with Olivia, Freesemann was not operating under
required supervisory guidelines. “No witness produced any
evidence of any such written guideline[s]. . . . The [trial court]
finds, more likely than not, none were in existence.”
C. Hughes Functioned Autonomously.
Dr. Bernard Koire was a plastic surgeon who entered a
consulting contract with Dr. Ledesma’s clinics and had a signed
but undated DSA with Hughes. As of January 2011, Dr. Koire
had had a stroke before ever meeting Hughes, and Hughes knew
Dr. Koire was no longer in active practice.
Hughes treated Olivia on January 3, 2011, January 17,
2011, and September 9, 2011.
The evidence showed that Dr. Koire “was not available in
person or by electronic communication[] at all times when
[Hughes] was caring for patients during the intervals when he
was treating Olivia, a violation of 16 CCR Section 1399.545(a).”
The trial court found it “likely that [Hughes] knew that he was
. . . functioning autonomously.” Dr. Koire reviewed the chart note
for Hughes’s September 9, 2011, encounter with Olivia, but that
occurred 88 days later, not within the required 30 days. Hughes
“was not operating under required supervisory ‘guidelines’ as
required under 16 CCR Section 1399.545(e).”
4
II. Statutory Interpretation.
This appeal hinges on the meaning of “supervision” in
former Business and Professions Code sections 3501 and 3502
and the regulations governing physician assistants as well as the
phrase “services are within the scope of services for which the
provider is licensed” in Civil Code section 3333.2, subdivision
(c)(2).
When we are called upon to interpret a statute, our goal is
to effectuate the intent of the Legislature. If the language used
has a plain meaning such that it is clear and unambiguous, we
must honor it. But if it is susceptible to more than one
reasonable interpretation, we will construe its meaning bearing
in mind the statute’s purpose, the evils to be remedied, the
legislative history, public policy, contemporaneous administrative
constructions, and the consequences of that will flow from the
different possible interpretations. (California Ins. Guarantee
Assn. v. Workers’ Comp. Appeals Bd. (2012) 203 Cal.App.4th
1328, 1338.) Statutory provisions should be harmonized to the
extent possible. (People v. Honig (1996) 48 Cal.App.4th 289, 328.)
A caveat to these rules is that courts “cannot, under the guise of
statutory interpretation, rewrite [a] statute. [Citations.]” (People
v. Nettles (2015) 240 Cal.App.4th 402, 408; Code Civ. Proc.,
§ 1858 [“In the construction of a statute . . . , the office of the
Judge is simply to ascertain and declare what is in terms or in
substance contained therein, not to insert what has been omitted,
or to omit what has been inserted”].)
Where, as here, a reviewing court interprets a former
statute that has been amended, I note the following. If a statute
clarifies rather than changes existing law, “courts interpreting
5
the statute must give the Legislature’s views consideration.
[Citation.]” (Moore v. Regents of University of California (2016)
248 Cal.App.4th 216, 246.)
A. Supervision.
Given that Freesemann and Hughes were not supervised,
the only way to conclude that they acted within the scope of their
licenses and therefore are protected by MICRA is to equate the
existence of their DSAs with the supervision required by former
sections 3501 and 3502. I conclude that this interpretation would
improperly eliminate the necessity of actual supervision and
should be rejected.
The former version of Business and Professions Code
section 3501, subdivision (f) operative in 2011 defined
“supervision” to mean “that a licensed physician and surgeon
oversees the activities of, and accepts responsibility for, the
medical services rendered by a physician assistant.” The current
version retains the same definition and then adds: “Supervision
. . . require[s] the following: [¶] (A) Adherence to adequate
supervision as agreed to in the practice agreement.[2] [¶] (B)
The physician and surgeon being available by telephone or other
electronic communication method at the time the [physician
assistant] examines the patient.” (Bus. & Prof. Code, § 3501
(f)(1).) This incorporates the regulatory law that existed since
2011. It required a DSA (Cal. Code Regs., tit. 16, § 1399.545,
2 As the majority notes, a practice agreement and a DSA
have the same meaning. (Bus. & Prof. Code, § 3501, subd. (k).)
6
subd. (a)), and it also required the physician and surgeon to be
available by telephone or other electronic means. (Cal. Code
Regs., tit. 16, § 1399.540, subd. (b).)
In 2011, former Business and Professions Code section
3502, subdivision (a) provided that “a physician assistant may
perform those medical services as set forth by the regulations of
the board where the services are rendered under the supervision
of a licensed physician[.]” The current version of the statute
provides that a physician assistant may perform medical services
if: (1) the physician assistant renders the services under the
supervision of a licensed physician and surgeon; (2) the physician
assistant renders the services pursuant to a practice agreement;
(3) the physician assistant is competent to perform the services;
and (4) the physician assistant’s education, training and
experience has prepared him or her to render the services. (Bus.
& Prof. Code, § 3502, subd. (a)(1)-(4).) “A supervising physician
and surgeon shall be available to the physician assistant for
consultation when assistance is rendered[.]” (Bus. & Prof. Code,
§ 3502, subd. (b)(2).) It is apparent that the current version of
the statute incorporates relevant regulations existing since 2011,
which provided (1) 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)), and (2) a “physician assistant shall consult
with a physician regarding any task, procedure or diagnostic
problem which the physician assistant determines his or her level
7
of competence or shall refer such cases to a physician” (Cal. Code
Regs., tit. 16, § 1399.540, subd. (d)).
The dictionary definition of “supervise” is “to oversee (a
process, work, workers, etc.) during execution or performance;
. . . ; have the oversight or direction of.”
( [as of Mar. 17, 2020].)
Former section 3501, subdivision (f) defined supervision to mean
a physician both oversees the activities of, and accepts
responsibility for, a physician assistant. There is no ambiguity.
The plain meaning of “supervision” under the former statutory
scheme included actual oversight by a physician separate from
the acceptance of responsibility.
Also, by incorporating existing regulations into the current
versions of sections 3501 and 3502, the Legislature has clarified
that supervision in the prior versions required adherence to
adequate supervision as agreed to in a practice agreement (or
DSA), and that a physician assistant could perform services
when, among other things, there was both supervision and an
existing practice agreement (or DSA). Regardless, this is what
the regulations have required since 2011.
Finally, the mere existence of a practice agreement (or a
DSA) does not equate to supervision in the former versions of
sections 3501 and 3502; if it did, the actual oversight component
of supervision would have been illusory.
Looking forward, equating supervision with a practice
agreement (or DSA) would render the actual oversight component
of supervision in the current version of Business and Professions
Code section 3501, subdivision (f) meaningless for new cases.
Also, as to the current version of the statute, it would conflate
8
Business and Professions Code section 3502, subdivision (a)(1)
(requiring supervision) and subdivision (a)(2) (requiring a
physician assistant to render services pursuant to a practice
agreement) and essentially nullify subdivision (a)(1). Though the
current versions of the statutes are not directly at issue, they are
impacted because our interpretation will apply in future cases.
For this reason, I note that “an interpretation which would
render terms of a statute surplusage should be avoided, and
every word should be given some significance, leaving no part
useless or devoid of meaning. [Citation.]” (California State
Employees’ Assn. v. State Personnel Bd. (1986) 178 Cal.App.3d
372, 378.) I decline to nullify the requirement of actual
supervision when a physician assistant is claiming MICRA
protection.
My interpretation is consistent with the 2011 (and current)
regulations requiring that a “supervising physician shall be
available in person or by electronic communication at all times
when the physician assistant is caring for patients” (Cal. Code
Regs., tit. 16, § 1399.545, subd. (a)), and that 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” (Cal. Code Regs., tit. 16, § 1399.545,
subd. (f)). These regulations contemplate actual oversight of a
physician assistant.
B. Services Within the Scope of Services for which a
Health Care Provider is Licensed.
Civil Code section 3333.2, subdivision (a) provides: “In any
action for injury against a health care provider based on
professional negligence, the injured plaintiff shall be entitled to
9
recover noneconomic losses[.]” (Civ. Code, § 3333.2, subd. (a).) In
such an action, noneconomic damages are capped at $250,000.
(Civ. Code, § 3333.2, subd. (b).)
A health care provider is defined as any person licensed
pursuant to Division 2 of the Business and Professions Code.
Because physician assistants are governed by Chapter 7.7 of
Division 2 of the Business and Professions Code, they squarely
fall within the definition of a health care provider. (Civ. Code,
§ 3333.2, subd. (c)(1).) The statute goes on to define professional
negligence to mean “a negligent act or omission to act by a health
care provider in the rendering of professional services, which act
or omission is the proximate cause of a personal injury or
wrongful death, provided that such services are within the scope
of services for which the provider is licensed and which are not
within any restriction imposed by the licensing agency or licensed
hospital.” (Civ. Code, § 3333.2, subd. (c)(2).)
Civil Code section 3333.2 applies to two broad categories of
licensees: those who are licensed to act autonomously and those
who are licensed to act under supervision. This last clause is
straightforward when it relates to a person who is licensed to act
autonomously. But what does it mean for someone like a
physician assistant?3
3 Waters v. Bourhis (1985) 40 Cal.3d 424 and Prince v. Sutter
Health Central (2008) 161 Cal.App.4th 971 do not help resolve
this question. Neither case involved a medical provider who
required supervision but acted autonomously.
10
The common sense understanding of Civil Code section
3333.2, subdivision (c)(2) is that MICRA applies only if the
physician assistant is supervised. After all, acting autonomously
is not within the scope of the services for which he or she was
licensed (former Bus. & Prof. Code, § 3502, subd. (a)), and the
applicable regulation imposes an obligation on physicians to
ensure that physician assistants do not function autonomously.
(Cal. Code Regs., tit. 16, § 1399.545, subd. (f).) Moreover, it defies
common sense to conclude that even though an unsupervised
physician assistant was barred by former Business and
Professions Code section 3502, subdivision (a) from providing
medical services, any medical services he or she did in fact
provide were nonetheless within the scope of services for which
he or she was licensed.
III. Application of the Law to the Facts.
Freesemann operated without supervision and knew it.
Further, she did not operate under guidelines. Because she was
not permitted to provide care to patients unless she was
supervised, she was not acting within the scope of her license.
Her conduct was not professional negligence within the meaning
of Civil Code section 3333.2, subdivision (c)(2), and the cap on
noneconomic damages in subdivision (b) does not apply.
I reach the same conclusion as to Hughes. Though
Dr. Koire reviewed one chart note from the last time Hughes saw
Olivia, that was 88 days later, and that lone, deficient act did not
constitute supervision. Hughes knew Dr. Koire was no longer in
11
active practice, Dr. Koire was never available for consultation,
Hughes operated autonomously, and Hughes did not operate
under guidelines.
I conclude that the trial court erred when it reduced the
$4.25 million award for noneconomic damages to $250,000.
__________________________, J.
ASHMANN-GERST
12