Lopez v. Ledesma

IN THE SUPREME COURT OF
CALIFORNIA
MARISOL LOPEZ,
Plaintiff and Appellant,
v.
GLENN LEDESMA et al.,
Defendants and Appellants;
BERNARD KOIRE,
Defendant and Respondent.
S262487
Second Appellate District, Division Two
B284452
Los Angeles County Superior Court
BC519180
February 24, 2022 (reposting corrected version)
Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Kruger,
Groban, Jenkins, and Meehan* concurred.
*
Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
LOPEZ v. LEDESMA
S262487
Opinion of the Court by Liu, J.
Under a provision of the Medical Injury Compensation
Reform Act (MICRA), damages for noneconomic losses shall not
exceed $250,000 in “any action for injury against a health care
provider based on professional negligence.” (Civ. Code, § 3333.2,
subds. (a), (b); all undesignated statutory references are to the
Civil Code.) An action is based on “professional negligence” and
thereby subject to section 3333.2’s cap on noneconomic damages
only if a health care provider’s services are “within the scope of
services for which the provider is licensed” and “are not within
any restriction imposed by the licensing agency or licensed
hospital.” (§ 3333.2, subd. (c)(2).)
We granted review to determine whether section 3333.2
applies to actions against physician assistants who are
nominally supervised by a doctor but receive minimal or no
actual supervision when performing medical services.
Construing the statute in light of its purposes and our
precedent, we hold that section 3333.2 applies to a physician
assistant who has a legally enforceable agency relationship with
a supervising physician and provides services within the scope
of that agency relationship, even if the physician violates his or
her obligation to provide adequate supervision.
We also granted review on a second issue: whether a
delegation of services agreement (DSA) between a supervising
physician and a physician assistant is legally effective where the
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physician is disabled and unable to practice medicine. On closer
examination, we decline to decide this issue, which was not
considered by the trial court or by the Court of Appeal.
I.
Because no party disputes the trial court’s factual
findings, we rely on the trial court’s statement of decision to
summarize the pertinent facts in this case. (See In re Marriage
of Fink (1979) 25 Cal.3d 877, 887.)
Dr. Glenn Ledesma, a dermatologist, owned and operated
a dermatology clinic in Southern California. Dr. Bernard Koire,
a plastic surgeon, contracted with the clinic to provide physician
services, physician assistant supervisor services, and consulting
services. Suzanne Freesemann and Brian Hughes worked as
physician assistants at the clinic. In 2009, Freesemann and Dr.
Ledesma signed a DSA designating Dr. Ledesma as
Freesemann’s supervising physician. According to the trial
court, “Neither party formally revoked the DSA and it was thus
nominally . . . in effect” at the time of the events giving rise to
this case. Hughes and Dr. Koire signed a DSA designating Dr.
Koire as Hughes’s supervising physician. Although the DSA
between Hughes and Dr. Koire was undated, the trial court
found that it established a supervising physician-physician
assistant relationship.
O.S. was a patient at Dr. Ledesma’s dermatology clinic
who received treatment from Freesemann and Hughes on
several occasions in 2010 and 2011. O.S. first visited the clinic
on December 8, 2010, after her mother, Marisol Lopez, noticed
a dark spot on O.S.’s scalp when she was seven or eight months
of age. During this appointment, Freesemann obtained a
medical history, examined O.S.’s scalp, and recommended an
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“excision and biopsy” treatment plan. On January 3, 2011,
Hughes performed a “shave biopsy” of O.S.’s lesion and sent the
biopsied tissue to be reviewed by a physician. O.S. attended a
followup appointment with Hughes on January 17, 2011, during
which Hughes reviewed the biopsy report and found that the
biopsied lesion was “benign” and that “everything [was]
normal.”
Lopez returned to Ledesma’s clinic on June 11, 2011, after
noticing that O.S.’s lesion was growing back. Freesemann
assessed the lesion as “wart(s)” and recommended that it be
burned off with liquid nitrogen. O.S. received the liquid
nitrogen treatment at the clinic on July 27, 2011. She returned
to the clinic on September 9, 2011, after the lesion grew back yet
again. During this visit, Hughes assessed the lesion as “warts”
and prepared a treatment plan referring O.S. to a general
surgeon to remove the “large growth.” Dr. Koire reviewed and
countersigned the treatment plan 88 days later. In December
2011, a general surgeon removed the lesion and diagnosed it as
“benign pigmented intradermal intermediate congenital nevus.”
In early 2013, Lopez noticed a bump on O.S.’s neck. A
doctor excised the neck mass and referred O.S. to an oncologist,
who diagnosed O.S. with “metastatic malignant melanoma.”
O.S. died on February 27, 2014.
At the time of Freesemann’s clinical encounters with O.S.,
Dr. Ledesma was no longer fulfilling any of his supervisory
obligations under the 2009 DSA. According to the trial court,
Dr. Ledesma was “involved in operating the clinic facilities in a
business sense,” but “he was no longer in active practice as a
physician.” During Hughes’s clinical encounters with O.S., “Dr.
Koire was not available in person or by electronic
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Opinion of the Court by Liu, J.
communications at all times.” Dr. Koire also “was no longer
engaged in active practice.”
In 2013, Lopez filed a medical malpractice action asserting
negligence claims against Hughes, Freesemann, Dr. Ledesma,
Dr. Koire, and others. After O.S. died, Lopez amended the
complaint to assert a wrongful death claim. The trial court
found in favor of Lopez on her negligence claims against
Freesemann and Hughes, holding that they did not take
adequate steps to diagnose O.S.’s condition and did not seek
guidance from a physician. The court held that Dr. Ledesma
was vicariously liable for the negligent actions of Freesemann
and that Dr. Koire was vicariously liable for the negligent
actions of Hughes. The court awarded Lopez $11,200 in
economic damages. It also awarded Lopez $4.25 million in
noneconomic damages but reduced this amount to $250,000
pursuant to MICRA’s cap on noneconomic damages. (§ 3333.2,
subd. (b).)
On appeal, Lopez argued that the trial court’s reduction in
damages was improper because Freesemann’s and Hughes’s
conduct fell within the proviso that excludes from section
3333.2’s coverage conduct that is outside “the scope of services
for which the provider is licensed” or “within any restriction
imposed by the licensing agency or licensed hospital.” (§ 3333.2,
subd. (c)(2); see Lopez v. Ledesma (2020) 46 Cal.App.5th 980,
985 (Lopez).) The Court of Appeal rejected this argument and
affirmed the trial court’s reduction in damages. (Lopez, at
pp. 985, 999.) It held 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.” (Id. at p. 985.) Justice
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Ashmann-Gerst dissented on the ground that Freesemann and
Hughes were not permitted to provide care to patients without
receiving actual supervision and thus acted outside the scope of
services for which they were licensed. (Id. at pp. 1005–1006 (dis.
opn. of Ashmann-Gerst, J.).) We granted review.
II.
The Legislature enacted MICRA in 1975 (Stats. 1975, 2d
Ex. Sess., ch. 1, § 1, p. 3949; see id., § 24.6, p. 3969) to address a
statewide “crisis regarding the availability of medical
malpractice insurance.” (Reigelsperger v. Siller (2007) 40
Cal.4th 574, 577.) “The problem . . . arose when the insurance
companies which issued virtually all of the medical malpractice
insurance policies in California determined that the costs of
affording such coverage were so high that they would no longer
continue to provide such coverage as they had in the past. Some
of the insurers withdrew from the medical malpractice field
entirely, while others raised the premiums which they charged
to doctors and hospitals to what were frequently referred to as
‘skyrocketing’ rates. As a consequence, many doctors decided
either to stop providing medical care with respect to certain high
risk procedures or treatment, to terminate their practice in this
state altogether, or to ‘go bare,’ i.e., to practice without
malpractice insurance. The result was that in parts of the state
medical care was not fully available, and patients who were
treated by uninsured doctors faced the prospect of obtaining
only unenforceable judgments if they should suffer serious
injury as a result of malpractice.” (American Bank & Trust Co.
v. Community Hospital (1984) 36 Cal.3d 359, 371.)
In the Legislature’s view, “[t]he continuing availability of
adequate medical care depends directly on the availability of
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adequate insurance coverage, which in turn operates as a
function of costs associated with medical malpractice litigation.”
(Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital
(1994) 8 Cal.4th 100, 111 (Western Steamship).) “Accordingly,
MICRA includes a variety of provisions all of which are
calculated to reduce the cost of insurance by limiting the amount
and timing of recovery in cases of professional negligence.”
(Ibid.)
Section 3333.2 is one such provision. It provides: “(a) In
any action for injury against a health care provider based on
professional negligence, the injured plaintiff shall be entitled to
recover noneconomic losses to compensate for pain, suffering,
. . . and other nonpecuniary damage. [¶] (b) In no action shall
the amount of damages for noneconomic losses exceed two
hundred fifty thousand dollars ($250,000).” It 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).)
In the same year it passed MICRA, the Legislature
enacted the Physician Assistant’s Practice Act (PAPA). This
latter act established the position of “physician assistant” to
address “the growing shortage and geographic maldistribution
of health care services in California.” (Bus. & Prof.
Code, § 3500.) The act aims “to encourage the effective
utilization of the skills of physicians . . . by enabling them to
work with qualified physician assistants to provide quality
care.” (Ibid., as amended by Stats. 2019, ch. 707, § 1. ) It defines
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a “physician assistant” as “a person who meets the requirements
of this chapter and is licensed by the [Physician Assistant
B]oard.” (Bus. & Prof. Code, § 3501, subd. (d).) To practice as a
physician assistant, an individual must complete an approved
training program and pass a licensing examination. (Id., § 3519,
subds. (a), (b).) Once licensed, a physician assistant may
perform medical services “under the supervision of a licensed
physician.” (Id., § 3502, subd. (a)(1).) Several sections of the
PAPA were amended effective January 1, 2020, pursuant to
Senate Bill No. 697 (2019–2020 Reg. Sess.). (See Stats. 2019,
ch. 707.) We apply the law as it existed at the time of the
relevant events.
The issue in this case is whether section 3333.2’s cap on
noneconomic damages applies to actions against physician
assistants where a licensed physician has legal responsibility for
supervising the physician assistant but provides minimal or no
actual supervision. We review this question of statutory
interpretation de novo. (People v. Prunty (2015) 62 Cal.4th 59,
71; Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 801.)
We turn first to the language of the statute. As noted,
section 3333.2 applies only to actions “based on professional
negligence.” (§ 3333.2, subd. (a).) The definition of “professional
negligence” in section 3333.2 has four elements: (1) “a negligent
act or omission to act by a health care provider in the rendering
of professional services,” (2) “which act or omission is the
proximate cause of a personal injury or wrongful death,”
(3) “provided that such services are within the scope of services
for which the provider is licensed,” and (4) “which are not within
any restriction imposed by the licensing agency or licensed
hospital.” (§ 3333.2, subd. (c)(2).) The parties do not dispute
that the first two elements are satisfied. The question is
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whether a physician assistant who receives negligible
supervision from his or her supervising physician provides
services outside “the scope of services for which the provider is
licensed” or “within [a] restriction imposed by the licensing
agency or licensed hospital.” (Ibid.) We address these elements
in turn.
A.
The language “scope of services for which the provider is
licensed” (§ 3333.2, subd. (c)(2)) is naturally understood as the
general range of activities encompassed by the provider’s
license. A psychiatrist, for instance, is licensed to provide
psychiatric treatment. Thus, a psychiatrist’s conduct arising
out of the course of psychiatric treatment falls within the scope
of services for which the psychiatrist is licensed. (See Waters v.
Bourhis (1985) 40 Cal.3d 424, 436 (Bourhis) [“it is clear that the
psychiatrist’s conduct arose out of the course of the psychiatric
treatment he was licensed to provide”].) By contrast, a
“psychologist perform[ing] heart surgery” does not provide
services within the scope of his or her license. (Ibid.)
The PAPA and the regulations promulgated by the
Physician Assistant Board set forth the medical services that a
licensed physician assistant “may perform.” (Bus. & Prof.
Code, former § 3502, subd. (a); see Cal. Code Regs., tit. 16,
§ 1399.540, subd. (a).) “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).) During the relevant time period,
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the writing that delegated medical services to a physician
assistant was called a DSA. (Id., § 1399.540, subd. (b).) A
physician assistant “may perform” the services delegated in the
DSA when the services are rendered “under the supervision of a
licensed physician and surgeon.” (Bus. & Prof. Code, former
§ 3502, subd. (a).) In addition to these general rules, the PAPA
specifies particular areas of practice, such as “[t]he practice of
dentistry,” that physician assistants may not perform even
under the supervision of a licensed physician. (Id., former
§ 3502, subd. (d).)
The question here is whether a physician assistant who
establishes a legal relationship with a supervising physician
through a DSA, but in practice receives minimal or no
supervision, is nonetheless practicing within “the scope of
services for which the provider is licensed.” (§ 3333.2,
subd. (c)(2).) Because a physician assistant is only authorized
to perform services “when the services are rendered under the
supervision of a licensed physician and surgeon,” this boils down
to a question of what it means for a physician assistant to be
“under the supervision” of a licensed physician. (Bus. & Prof.
Code, former § 3502, subd. (a).)
According to Lopez, that phrase means that the level of
supervision provided by the assigned supervising physician
must be adequate under the governing statutes and regulations.
By contrast, Freesemann and Hughes contend that a physician
assistant is “under the supervision” of a licensed physician so
long as the physician has taken on the legal responsibility to
supervise the physician assistant through the formation of a
DSA, regardless of the adequacy of supervision at any given
time. Both are reasonable interpretations of the statute’s
ambiguous text. But we do not read the text in a vacuum; our
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task is to construe the statutory language in a manner that
“comports most closely with the apparent intent of the
Legislature, with a view to 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.)
The version of Business and Professions Code section 3501
that applies to this case defined “supervision” to mean that a
licensed physician “oversees the activities of, and accepts
responsibility for, the services rendered by the physician
assistant.” (Bus. & Prof. Code, former § 3501, subd. (a)(6) [now
subd. (f)(1)].) This language suggests that a physician
“supervis[es]” a physician assistant when the physician
undertakes legal responsibility for the physician assistant’s
conduct. While that provision has recently been amended to
additionally specify that supervision requires “[a]dherence to
adequate supervision as agreed to in the practice agreement,”
the amended law is not before us today. (Bus. & Prof. Code,
§ 3501, subd. (f)(1)(A).)
Further, as noted, the Legislature enacted MICRA “in
response to rapidly increasing premiums for medical
malpractice insurance” that threatened the availability of
adequate medical care in California. (Preferred Risk Mutual
Ins. Co. v. Reiswig (1999) 21 Cal.4th 208, 214; see Western
Steamship, supra, 8 Cal.4th at p. 111.) “MICRA provisions
should be construed liberally in order to promote the legislative
interest . . . to reduce [these] premiums.” (Preferred Risk, at
p. 215.) The act aims “to contain the costs of malpractice
insurance by controlling or redistributing liability for damages,
thereby maximizing the availability of medical services to meet
the state’s health care needs.” (Western Steamship, at p. 112.)
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“Section 3333.2 constitutes a key component of this program.”
(Western Steamship, at p. 114.) The $250,000 cap was designed
“to control and reduce medical malpractice insurance costs by
placing a predictable, uniform limit on the defendant’s liability
for noneconomic damages.” (Salgado v. County of Los Angeles
(1998) 19 Cal.4th 629, 641 (Salgado).) An interpretation of the
“scope of services” proviso based on adequacy of supervision
“would threaten not only this goal but also the broader purpose
of MICRA” (Western Steamship, at p. 112) for several reasons.
First, a standard based on adequacy of supervision could
create inconsistencies in damages depending on whether a
plaintiff sues the supervising physician or the physician
assistant. A supervising physician who provides inadequate
supervision to a physician assistant may be directly liable for
his or her own negligence. (See Delfino v. Agilent Technologies,
Inc. (2006) 145 Cal.App.4th 790, 815 [“Liability for negligent
supervision and/or retention of an employee is one of direct
liability for negligence, not vicarious liability.”].) Under such a
theory of liability, any noneconomic damages would be subject
to the cap in section 3333.2 because a supervising physician who
negligently supervises a physician assistant who commits
malpractice acts “within the scope of services for which the
provider is licensed.” (§ 3333.2, subd. (c)(2).) But, in Lopez’s
view, if the plaintiff pursued a negligence claim against the
physician assistant, the limit on noneconomic damages would
not apply because the inadequate supervision would render the
physician assistant outside the scope of his or her license.
“Permitting an unlimited award of noneconomic damages
against the physician assistant and only a limited award against
the supervising physician based upon the same harm would be
both irrational and inconsistent with MICRA’s goal of
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predictability in damage awards.” (Lopez, supra, 46
Cal.App.5th at p. 998.)
Second, the regulations governing physician assistants
place most of the onus of ensuring compliance with day-to-day
supervisory obligations on the supervising physician, not the
physician assistant. Those regulations provide that a
“supervising physician shall be available in person or by
electronic communication at all times when the physician
assistant is caring for patients,” a “supervising physician shall
observe or review evidence of the physician assistant’s
performance” of all delegated tasks and procedures, and a
“supervising physician has continuing responsibility to . . . make
sure that the physician assistant does not function
autonomously.” (Cal. Code Regs., tit. 16, § 1399.545, subds. (a),
(c), (f).) As a practical matter, a physician assistant may have
little ability to monitor or control whether a supervising
physician complies with his or her supervisory obligations, such
as the obligation to be available at all times.
The trial court in this case found it likely that Freesemann
and Hughes knew they were not adequately supervised. To take
into account a physician assistant’s knowledge, one could craft
a rule that deems a physician assistant’s services to be outside
the scope of his or her license when the physician assistant
knows that the supervising physician violated a supervisory
obligation and the physician assistant proceeds to treat patients
nonetheless. It may be that such a rule would protect the health
and welfare of some patients by disincentivizing physician
assistants from acting autonomously in the face of known
supervisory violations.
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But such a rule, which no party urges us to adopt, would
require case-by-case inquiry into the nature, timing, and extent
of a physician assistant’s knowledge of lapses in supervision. In
circumstances where an injury is attributable to multiple
lapses, would it be enough to take a physician assistant’s
activities outside the scope of his or her license if the physician
assistant knows of some but not all of the lapses? And for what
period of time in relation to the injury must the physician
assistant know of the lapses? The latter question may be
especially relevant in the context of a missed diagnosis or failure
to provide appropriate treatment over several months or years.
Detailed inquiry into and potential litigation over these fact-
intensive questions would be at odds with MICRA’s goal of
ensuring predictability in damage awards. Moreover, it remains
the case that such knowingly autonomous conduct by physician
assistants constitutes professional negligence that may result in
legal liability (albeit limited by MICRA) and professional
discipline. Although these consequences do not go as far as
Lopez would like, they do disincentivize rogue conduct in the
known absence of meaningful supervision.
An interpretation of the “scope of services” proviso based
on the legal agency relationship between the supervising
physician and physician assistant avoids the unpredictability
discussed above. Under this interpretation, a physician
assistant acts within the scope of his or her license as long as he
or she acts under an established agency relationship with a
licensed physician, provides the type of medical services he or
she is authorized to provide as the physician’s agent, and does
not engage in an area of practice prohibited by the PAPA.
A standard based on the formation of a legal agency
relationship also comports with MICRA’s goal “to control and
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reduce medical malpractice insurance costs.” (Salgado, supra,19 Cal.4th at p. 641.) “In medical malpractice litigation,
noneconomic damages typically account for a large part of a total
damage award and, therefore, a large part of the insurance
carriers’ expense.” (Perry v. Shaw (2001) 88 Cal.App.4th 658,
668 (Perry).) The size of noneconomic damage awards against a
physician assistant affects the supervising physician’s
insurance premiums because after an agency relationship is
formed, the supervising physician is legally responsible for any
malpractice committed by the physician assistant. (See Cal.
Code Regs., tit. 16, § 1399.545, subd. (f) [“The supervising
physician shall be responsible for all medical services provided
by a physician assistant under his or her supervision.”].) The
risk of unpredictable, large noneconomic damage awards
against a physician assistant therefore may impact the
malpractice insurance premiums of both the physician assistant
and the supervising physician.
To be sure, there are reasonable policy arguments for
excluding physician assistants who perform medical services
without actual supervision from a cap on noneconomic damages,
and the Legislature is well equipped to weigh and reweigh the
competing policy considerations. But our role is confined to
interpreting the statute before us in the manner that comports
most closely with the Legislature’s purpose in enacting MICRA.
We hold that a physician assistant practices within the scope of
his or her license for purposes of MICRA’s cap on noneconomic
damages when the physician assistant acts as the agent of a
licensed physician, performs the type of services authorized by
that agency relationship, and does not engage in an area of
practice prohibited by the PAPA. (Bus. & Prof. Code, former
§ 3502, subd. (d).)
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B.
Next, we turn to the proviso exempting from section
3333.2 services that are “within any restriction imposed by the
licensing agency or licensed hospital.” (§ 3333.2, subd. (c)(2).)
In Bourhis, we interpreted an identical provision in another
section of MICRA. (Bourhis, supra, 40 Cal.3d at pp. 435–436;
see Bus. & Prof. Code, § 6146, subd. (c)(3).) Bourhis involved a
psychiatrist who allegedly induced the plaintiff “to participate
in sexual conduct by suggesting that it was part of the therapy
designed to alleviate her sexual inhibitions, and at other times
he coerced her to participate by threatening to have her
institutionalized if she did not cooperate.” (Bourhis, at p. 428.)
The case settled before trial, and the attorney retained a higher
percentage of the settlement amount than he would have been
permitted to retain under the MICRA contingency fee limitation
in Business and Professions Code section 6146. (Bourhis, at
pp. 427–428.)
The attorney argued on appeal that “because sexual
misconduct by a psychiatrist toward a patient has long been a
basis for disciplinary action by the state’s licensing agency
[citation], any cause of action which is based on such misconduct
falls within the proviso, as a ‘restriction imposed by the licensing
agency.’ ” (Bourhis, supra, 40 Cal.3d at p. 436, fn. omitted.) We
rejected this argument, explaining that the proviso “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.’ 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.” (Ibid.)
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We held that “the psychiatrist’s conduct arose out of the course
of the psychiatric treatment he was licensed to provide.” (Ibid.)
Lopez argues that a physician assistant who treats
patients without adequate supervision renders services “within
[a] restriction imposed by the licensing agency.” (§ 3333.2,
subd. (c)(2).) We disagree. The trial court found that the
negligible supervision in this case violated several regulations
governing the conduct of supervising physicians and physician
assistants. (See, e.g., Cal. Code Regs., tit. 16, §§ 1399.545,
subds. (a) [“A supervising physician shall be available in person
or by electronic communication at all times when the physician
assistant is caring for patients.”], (f) [“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.”], 1399.540, subd. (d) [“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.”].) But these regulations, which
describe various requirements of appropriate supervision, are
not restrictions imposed by a physician assistant’s licensing
agency. As we explained in Bourhis, the proviso was not
intended to exclude an action from MICRA “simply because a
health care provider acts contrary to professional standards or
engages in one of the many specified instances of ‘unprofessional
conduct.’ Instead, it was simply intended to render MICRA
inapplicable when a provider operates in a capacity for which he
is not licensed . . . .” (Bourhis, supra, 40 Cal.3d at p. 436.)
The PAPA provides several examples of restrictions that,
if imposed by the licensing agency, would limit a physician
assistant’s license and place particular services outside the
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ambits of MICRA. The Physician Assistant Board may issue a
probationary license that imposes “[r]estrictions against
engaging in certain types of medical services” or “restrictions on
issuing a drug order for controlled substances.” (Bus. & Prof.
Code, former § 3519.5, subd. (a)(7), (2).) And when a physician
assistant is accused of engaging in “unprofessional conduct,”
including the violation of the supervisory regulations at issue
here, the Physician Assistant Board may, after a hearing,
impose “probationary conditions upon a [physician assistant]
license.” (Id., § 3527, subd. (a).) Such probationary conditions
would by definition amount to a “restriction imposed by the
licensing agency.” (Civ. Code, § 3333.2, subd. (c)(2).) But
unprofessional conduct, without more, does not. We agree with
the Court of Appeal that “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.” (Lopez, supra, 46 Cal.App.5th at p. 997,
fn. 17.)
If unprofessional conduct of the kind at issue here were
alone sufficient to trigger the “within any restriction imposed by
the licensing agency” proviso in section § 3333.2,
subdivision (c)(2), then medical malpractice plaintiffs could
avoid MICRA’s damages cap by identifying one member of a
health care team who violates a single regulation governing that
team. That individual, and potentially the supervising
physician under a theory of vicarious liability, would then be
subject to unlimited liability for noneconomic damages.
Allowing medical malpractice plaintiffs to avoid the MICRA cap
in this way would be at odds with MICRA’s purpose to “control
and reduce medical malpractice insurance costs by placing a
predictable, uniform limit on a defendant’s liability for
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Opinion of the Court by Liu, J.
noneconomic damages.” (Salgado, supra, 19 Cal.4th at p. 641.)
Neither the language of MICRA nor the legislative history
provides any indication that the Legislature intended to enact
such a broad exemption from the cap. We hold that a physician
assistant does not render services “within [a] restriction
imposed by the licensing agency” (§ 3333.2, subd. (c)(2)) simply
by engaging in unprofessional conduct, such as the
noncompliance with supervisory regulations at issue in this
case.
C.
Lopez cites Perry for the proposition that MICRA’s cap on
noneconomic damages should be construed narrowly. But the
Court of Appeal in Perry reached no such conclusion. Instead,
the court declined to apply MICRA’s cap on noneconomic
damages to intentional torts because “section 3333.2 applies
only in actions ‘based on professional negligence,’ ” and nothing
in the legislative history “suggest[s] the Legislature intended to
exempt intentional wrongdoers from liability by treating such
conduct as though it had been nothing more than mere
negligence.” (Perry, supra, 88 Cal.App.4th at p. 669.) No
intentional wrongdoing is at issue here.
Lopez also argues that the “purpose of [s]ection 3333.2 is
to provide a benefit to health care professionals” by limiting
their liability for noneconomic damages and that physician
assistants who act without adequate supervision should not
“reap the benefits” of MICRA’s “protections.” But this
misapprehends the purpose of the noneconomic damages cap.
“ ‘[T]he $250,000 limitation . . . does not reflect a legislative
determination that a person injured as a result of medical
malpractice does not suffer such damages’ ” and “is not a
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LOPEZ v. LEDESMA
Opinion of the Court by Liu, J.
legislative attempt to estimate the true damages suffered by
plaintiffs.” (Salgado, supra, 19 Cal.4th at p. 641.) Nor is it a
licensing provision or part of a code of professional standards
designed to protect health care providers who adhere to certain
standards or comply with particular statutes and regulations.
Rather, the $250,000 cap is an “attempt to control and reduce
medical malpractice insurance costs.” (Ibid.) The damages cap
inherently concerns health care providers alleged or proven to
have engaged in negligent conduct; it is not designed to reward
or protect health care providers who, acting within the scope of
their education and training, adhere to professional standards
while exempting those who do not.
Lopez further argues that because Freesemann’s and
Hughes’s conduct could subject them to professional discipline
or criminal liability, the conduct is not “professional negligence”
under section 3333.2. But the question of whether a physician
assistant’s conduct provides a basis for professional discipline or
criminal liability is distinct from the question of whether such
conduct constitutes “professional negligence” within the
meaning of section 3333.2. As we have held, MICRA may apply
to the misconduct of a health care provider even if the
misconduct could serve as the basis for professional discipline.
(Bourhis, supra, 40 Cal.3d at p. 436 [rejecting defendant’s
argument that MICRA does not apply because “sexual
misconduct by a psychiatrist toward a patient has long been a
basis for disciplinary action by the state’s licensing agency”].)
Likewise, the possibility that criminal liability could
attach to a health care provider’s conduct does not necessarily
render MICRA inapplicable. In Bourhis, we held that MICRA
applied to an action against a psychiatrist who compelled his
patient to submit to sexual intercourse by “threatening to have
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Opinion of the Court by Liu, J.
her institutionalized if she did not cooperate.” (Bourhis, supra,
40 Cal.3d at p. 428.) It is possible that such conduct could give
rise to criminal liability. (Pen. Code, § 261.) But we held that
the limitation on damages still governed because “the
psychiatrist’s conduct arose out of the course of the psychiatric
treatment he was licensed to provide.” (Bourhis, at p. 436; see
also Larson v. UHS of Rancho Springs, Inc. (2014)
230 Cal.App.4th 336, 351–352; David M. v. Beverly Hospital
(2005) 131 Cal.App.4th 1272, 1278.)
Neither our case law nor the language of MICRA suggests
that the possibility of professional discipline or criminal liability
necessarily places a health care provider’s actions outside “the
scope of services for which [he or she] is licensed” or “within any
restriction imposed by the licensing agency or licensed hospital.”
(§ 3333.2, subd. (c)(2).) We thus conclude that the fact that
Freesemann’s and Hughes’s conduct could give rise to
professional discipline or criminal liability does not render
MICRA inapplicable.
III.
We also granted review on a second issue: whether a DSA
between a supervising physician and a physician assistant is
legally effective where the physician is disabled and unable to
practice medicine. On closer examination, we decline to
consider this issue, which was neither raised in the trial court
nor timely raised in the Court of Appeal.
The trial court held that the DSA between Dr. Ledesma
and Freesemann was nominally in effect at the time of
Freesemann’s clinical encounters with O.S. because “[n]either
party formally revoked the DSA.” Likewise, the trial court held
that Dr. Koire and Hughes “had a [supervising
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LOPEZ v. LEDESMA
Opinion of the Court by Liu, J.
physician-physician assistant] relationship” by virtue of their
DSA. Lopez raised no challenge to these findings in the trial
court. Nor did Lopez challenge these findings in her briefing in
the Court of Appeal.
In her petition for rehearing before the Court of Appeal,
Lopez argued for the first time that there was no DSA legally in
effect between Dr. Ledesma and Freesemann because the DSA
was “revoked by operation of law” due to “incapacity of the
principal.” In her petition for review before this court, Lopez
argued for the first time that the DSA between Dr. Koire and
Hughes had also been revoked.
“[A] reviewing court ordinarily will not consider a
challenge to a ruling if an objection could have been but was not
made in the trial court.” (In re S.B. (2004) 32 Cal.4th 1287,
1293.) As a matter of policy, “we normally do not consider any
issue that could have been but was not timely raised in the briefs
filed in the Court of Appeal.” (Flannery v. Prentice (2001) 26
Cal.4th 572, 591 (Flannery); Cal. Rules of Court, rule
8.500(c)(1).)
Lopez asks us to exercise our discretion to consider an
issue of DSA revocation that was neither raised in the trial court
nor timely raised in the Court of Appeal. (See Midland Pacific
Building Corporation v. King (2007) 157 Cal.App.4th 264, 276.)
But Lopez’s case-specific argument that the disabilities of Dr.
Ledesma and Dr. Hughes severed the agency relationship
established in their respective DSAs does not raise “ ‘extremely
significant issues of public policy and public interest’ [citation]
such as may have caused us on infrequent prior occasions to
depart from” our ordinary policy. (Flannery, supra, 26 Cal.4th
at p. 591.) Moreover, it turns on facts not addressed by the trial
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LOPEZ v. LEDESMA
Opinion of the Court by Liu, J.
court, such as the severity of Dr. Ledesma’s disability. We
therefore decline to consider this issue.
CONCLUSION
We affirm the judgment of the Court of Appeal.
LIU, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
MEEHAN, J.*
*
Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
22
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Lopez v. Ledesma
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 46 Cal.App.5th 980Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S262487
Date Filed: February 24, 2022
__________________________________________________________
Court: Superior
County: Los Angeles
Judge: Lawrence P. Riff
__________________________________________________________
Counsel:
Esner, Chang & Boyer, Stuart B. Esner; Law Office of Neil M. Howard
and Neil M. Howard for Plaintiff and Appellant.
Steven B. Stevens for Consumer Attorneys of California as Amicus
Curiae on behalf of Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson and Zena
Jacobsen for Defendants and Appellants.
Reback, McAndrews & Blessey and Thomas F. McAndrews for
Defendant and Appellant Glen Ledesma.
LaFollette Johnson De Haas Fesler & Ames and Louis DeHaas for
Defendant and Appellant Suzanne Freesemann.
Peterson Bradford Burkwitz and Avi A. Burkwitz for Defendant and
Appellant Brian Hughes.
Fred J. Hiestand for the Civil Justice Association of California as
Amicus Curiae on behalf of Defendants and Appellants.
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.
Prindle, Goetz, Barnes & Reinholtz, Jack R. Reinholtz and Douglas S.
de Heras for Defendant and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Stuart B. Esner
Esner, Chang & Boyer LLP
234 East Colorado Boulevard, Suite 975
Pasadena, CA 91101
(626) 535-9860
Matthew S. Levinson
Cole Pedroza LLP
2295 Huntington Drive
San Marino, CA 91108
(626) 431-2787