MARISOL LOPEZ, Plaintiff and Appellant, v. GLENN LEDESMA et al., Defendants and Appellants; BERNARD KOIRE, Defendant and Respondent.
S262487
Supreme Court of California
February 24, 2022
Second Appellate District, Division Two, B284452; Los Angeles County Superior Court, BC519180
Justice Liu authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Kruger, Groban, Jenkins, and Meehan* concurred.
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.” (
We granted review to determine whether
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
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
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
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. (
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
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
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.” (
The issue in this case is whether
We turn first to the language of the statute. As noted,
A.
The language “scope of services for which the provider is licensed” (
The PAPA and the regulations promulgated by the Physician Assistant Board set forth the medical services that a licensed physician assistant “may perform.” (
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.” (
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
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.” (
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.)
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
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.” (
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.
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
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. (
B.
Next, we turn to the proviso exempting from
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.)
Lopez argues that a physician assistant who treats patients without adequate supervision renders services “within [a] restriction imposed by the licensing agency.” (
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
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
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
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
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
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.” (
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
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);
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
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.*
*
Name of Opinion Lopez v. Ledesma
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 46 Cal.App.5th 980
Review 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.
La Follette 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.
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.
Stuart B. Esner
Esner, Chang & Boyer LLP
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Matthew S. Levinson
Cole Pedroza LLP
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