Thursday, March 26, 2020
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Court of Appeal:
MICRA Cap Properly Applied to Unsupervised Assistants
Majority Says $250,000 Lid on Noneconomic Damages Applies to Physician Assistants Who Act Autonomously If They Have a Legal Agency Relationship With a Doctor
By a MetNews Staff Writer
The Medical Injury Compensation Reform Act’s $250,000 cap on noneconomic damages in malpractice cases applies to harms caused by physician assistants, provided they have an agency relationship with a doctor, even if they are, in fact, unsupervised, Div. Two of this district’s Court of Appeal has held in a 2-1 decision.
Presiding Justice Elwood Lui wrote for himself and Justice Victoria Chavez in affirming a judgment rendered by Los Angeles Superior Court Judge Lawrence P. Riff. Justice Judith Ashmann-Gerst dissented.
Their opinions were filed Tuesday in Lopez v. Ledesma, 2020 S.O.S. 1389.
Riff had set noneconomic damages in connection with the death of the plaintiff’s daughter, age 4, at $4.25 million, but shaved the award to $250,000, pursuant to a provision of MICRA, Civil Code §3333.2.
It says that “[i]n 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, inconvenience, physical impairment, disfigurement and other nonpecuniary damage,” but adds:
“In no action shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000).”
Mother’s Contention
That provision does not apply to the physician assistants—Suzanne Freesemann and Brian Hughes—the mother, Marisol Lopez, contends, in light of a proviso in §3333.2(c)(2) that the cap applies only to services which “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.”
The unsupervised acts of Freesemann and Hughes, Lopez maintains, are not subject to the MICRA cap because those acts contravened statutes and regulations.
Riff observed that both physician assistants had acted “autonomously” at a dermatology clinic which treated Lopez’s daughter, but found that §3333.2(c)(2) only has applicability to a “particularized restriction previously imposed” by a licensing agency.
(Freesemann concluded that the child merely had “warts” and Hughes said there was nothing to worry about—while, in fact, she had contracted melanoma, as determined by an oncologist prior to the girl’s death.)
Lui’s Opinion
In his opinion affirming Riff’s decision, Lui wrote:
“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 [sic]. 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.”
MICRA was enacted in 1975 in reaction to a medical malpractice crisis, with run-away verdicts driving up the cost of premiums and doctors going on strike—or, as they put, “withholding services.”
Legal Agency Relationship
Lui specified that a physician assistant may perform any task delegated to him or her by a physician, but one who provides services without an agency relationship with a physician does act “outside the scope of services for which the provider is licensed” and the MICRA cap would not apply.
“[T]he 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),” the jurist declared.
That a physician might be derelict in failing to supervise a physician assistant, he said, is not of significance in light of the California Supreme Court’s 1985 determination in Waters v. Bourhis that MICRA’s cap on contingency legal fees was not rendered inapplicable “simply because a health care provider acts contrary to professional standards or engages in one of the many specified instances of ‘unprofessional conduct.’ ”
Ashmann-Gerst’s Dissent
In her dissent, Ashmann-Gerst pointed to Business & Professions Code §3502 which, provided in the version in effect when Freesemann and Hughes performed their services (as it does in the current version) that a physician assistant may only perform services “under the supervision of a licensed physician and surgeon.”
She asserted:
“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…and the applicable regulation imposes an obligation on physicians to ensure that physician assistants do not function autonomously….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.”
Outside Scope
Ashmann-Gerst went on to say:
“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.”
Attorneys on appeal were Stuart Esner of Esner, Chang & Boyer, along with Neil M. Howard, for Lopez; Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson and Zena Jacobsen for Freesemann and Hughes, as well as Glenn Ledesma, the Beverly Hills dermatologist who owns the clinic at which they were employed; and Jack R. Reinholtz and Douglas S. de Heras of Prindle, Goetz, Barnes & Reinholtz, for defendant Bernard Koire, a former plastic surgeon who was no longer in active practice when he ostensibly became supervising physician to Hughes.
Actions Against Doctor
On June 29, 2015, Ledesman’s license to practice medicine was revoked. It was found, among other things, that he “oversaw a global system of fraudulent billing to insurance carriers and patients”; providing treatments that “were not medically necessary” in order “to increase patients’ bills”; and faking disability.
“For many years, he defrauded his disability insurance carriers with false statements that he was totally disabled and unable to do anything but visit his doctor, run errands and rest when, in fact, he was quite active and working in his regular occupation as a dermatologist and business owner,” it was found.
His license has been revoked in New York and suspended in Florida, Connecticut and Virginia.
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