CAROLE MASO v. BRIAN ZEH ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.
SUPREME COURT OF GEORGIA
Case No. S23C0765
November 7, 2023
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
CAROLE MASO et al. v. BRIAN ZEH et al.
The Supreme Court today denied the petition for certiorari in
this case.
All the Justices concur, except Bethel, Ellington, and Colvin,
JJ., who dissent. Peterson, P. J., disqualified.
Court of Appeals Case No. A22A1289
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk
PINSON, J. concurring in the denial of certiorari.
This is a medical-malpractice action seeking to hold a physi-
cian vicariously liable for the alleged negligence of a physician as-
sistant. The petitioner, whose husband died after a medical proce-
dure the physician assistant helped with, asked us to review the
Court of Appeals’ holding below that the Physician Assistant Act
(PAA), OCGA § 43-34-100 et seq., does not “create[] vicarious liabil-
ity for supervising physicians for the medical acts of their PAs.” Zeh
v. Maso, 366 Ga. App. 890, 894 (884 SE2d 563) (2023).
There is a reasonable argument that a physician who delegates
medical tasks to a physician assistant under the arrangement au-
thorized by the PAA is vicariously liable for the physician assistant’s
performance of medical tasks under that arrangement. Dating back
to the common law, a principal has been vicariously liable for the
torts of an agent acting on his behalf, including in the context of
health care. See OCGA § 51-2-1 (a) (“For the negligence of one per-
2
son to be properly imputable to another, the one to whom it is im-
puted must stand in such a relation or privity to the negligent per-
son as to create the relation of principal and agent.”).1 The relation-
ship the PAA sets up between a supervising physician and a physi-
cian assistant looks a lot like a principal-agent relationship. 2 Com-
pare OCGA § 10-6-1 (an agent-principal relationship “arises when-
ever one person, expressly or by implication, authorizes another to
act for him or subsequently ratifies the acts of another in his behalf”)
with id. § 43-34-102 (7) (a physician assistant is “qualified…to pro-
vide patients’ services not necessarily within the physical presence
but under the personal direction or supervision of the supervising
physician”); id. § 43-34-102 (4) (limiting a physician assistant’s du-
ties to the “scope of practice of the primary supervising physician”);
1 This language has remained largely unaltered since first introduced.
See, e.g., Civil Code of 1895, § 2902; Code of 1933, § 105-205.
2 The PAA enables physicians to delegate health care tasks to physician
assistants. Under the Act, the “physician who will be responsible for the per-
formance of such physician assistant” submits an application to the Georgia
Composite Medical Board that describes the work a licensed physician assis-
tant will do within the scope of the supervising physician’s practice. OCGA §§
43-34-102 (4); 43-34-103 (a) (2). If approved, the board issues the physician
assistant a “license authorizing the assistant to perform medical tasks under
the direction and supervision of the physician.” Id. § 43-34-104 (b).
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id. § 43-34-105 (“[A] physician assistant, under the direction of the
applying physician, may perform the tasks described in the job de-
scription” and additional tasks “performed under the direct supervi-
sion and in the presence of the physician utilizing him or her”); id.
§ 43-34-109 (“When a patient receives medical services from a phy-
sician assistant, the supervising physician’s involvement in the pa-
tient’s care…shall be appropriate to the nature of the practice and
the acuity of the patient’s medical issue, as determined by the su-
pervising physician”). And I do not see clear evidence in the PAA
that the legislature modified or displaced the longstanding princi-
ples of vicarious liability that would apply to such relationships. See,
e.g., OCGA § 43-34-103 (a) (2) (“[T]he licensed physician who will be
responsible for the performance of [the] physician assistant shall
submit an application to the board…”). In short, if a supervising phy-
sician and physician assistant are in a principal-agent relationship,
then under ordinary principles of vicarious liability, the physician
would be liable for the physician assistant’s acts performed on the
physician’s behalf. See OCGA § 51-2-1 (a).
4
Here’s the rub: the argument I’ve just outlined doesn’t appear
to be available to the petitioner in this case. That argument depends
on a claim that physicians are vicariously liable for the acts of the
physician assistants they supervise because they are in a principal-
agent relationship. But no such claim is before us here: although the
plaintiff raised a separate claim of vicarious liability under an “ac-
tual agency” theory in the trial court, the court rejected that claim,
and that ruling was not cross-appealed. So the only ruling the Court
of Appeals addressed below was the trial court’s ruling that the phy-
sician here was liable for the PA’s conduct because the PAA itself
imposed that liability, and the Court of Appeals’ rejection of that
ruling is the only issue that would be properly before us if we
granted review. In short, the Court of Appeals did not answer the
broader question whether a supervising physician is vicariously lia-
ble for the acts of a physician assistant serving at his direction as
authorized by the PAA, and that question is not presented here in a
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way that would allow us to address it fully. 3
That said, this question is undoubtedly an important one, par-
ticularly given the prevalence of physician assistants across Georgia
and their role in the General Assembly’s mission to “alleviate the
growing shortage and geographic maldistribution of health care”
across the State. OCGA § 43-34-101 (a).4 So I agree with the Court’s
3 Further complicating our review of this question, it appears that the
physician sued in this case is not the “primary supervising physician” of the
physician assistant here. Although I do not discount the possibility that any
given supervising physician and physician assistant could be in a principal-
agent relationship under the right circumstances, making that case seems
more straightforward in the context of the formal relationship created under
the PAA between a primary supervising physician and the physician assistant.
See OCGA § 43-34-102 (9) (“‘Primary supervising physician’ means the physi-
cian to whom the board licenses a physician assistant pursuant to a board ap-
proved job description and who has the primary responsibility for supervising
the practice of a physician assistant pursuant to that physician assistant's job
description.”); id. § 43-34-103 (a) (2) (describing the physician who applies to
the board to utilize a physician assistant as “the licensed physician who will be
responsible for the performance of such physician assistant”); id. § 43-34-104
(a) (explaining that if the board approves an application, the assistant gets a
license “authorizing the assistant to perform medical tasks under the direction
and supervision” of the applying physician).
4 Similar questions of vicarious liability may arise with respect to nurse
practitioners. Like physician assistants, nurse practitioners provide medical
care under a physician’s oversight and their duties are delineated in a written
document signed by the physician overseeing them. See Ga. Comp. R. & Regs.,
r. 410-11-.13 (2) (c) (requiring a written “nurse protocol” specifying medical acts
delegated by the physician to an advanced practice registered professional
nurse); id. r. 410-11-.01 (2) (a) (defining “advanced practice registered nurse”
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decision not to grant further review of this case, but I am open to
reviewing these important questions about vicarious liability in an
appropriate case.
I am authorized to state that Justice Warren joins in this con-
currence.
to include nurse practitioners). See also OCGA § 43-34-23 (b) (1) (allowing phy-
sicians to delegate certain duties to either nurse practitioners or physician as-
sistants).
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