Davis v. Physician Assistant Board (July 2, 2021, C084559) _ Cal.App.5th _ [2021 WL 2767339]

Physician assistant’s unsupervised liposuctions and “Director of Surgery” title misled patients and was unauthorized practice of medicine.

Rodney Davis, a physician assistant, learned to perform liposuction while working under a physician. Davis later opened his own practice and hired Dr. Jerrell Borup to be his supervising physician and “Medical Director.” Dr. Borup had not practiced medicine in 12 years or performed liposuction. Davis gave himself the title of “Director of Surgery” and performed all liposuction procedures.

The Physician Assistant Board accused Davis of unlicensed practice of medicine, negligence, and false or misleading advertising. An administrative law judge found that Davis created a practice that appeared legitimate, but allowed him to operate autonomously; that Dr. Borup lacked relevant experience and failed to meet supervising physician requirements; and that Davis provided materials, including a consent form, that led patients to believe he was a doctor. The Board adopted the ALJ’s findings and revoked Davis’s license. The superior court denied Davis’s writ petition and he appealed.

The Court of Appeal affirmed. The court first held that the unlawful practice of medicine laws apply to physician assistants who operate without physician supervision. A supervising physician may delegate tasks consistent with his specialty, but Dr. Borup had never performed surgery and had taken only a two-day course in liposuction, thus he was not competent to delegate liposuction tasks to Davis. The court rejected Davis’s contention that Dr. Borup’s failure to supervise could not form the basis of a claim against Davis, noting that a physician assistant is prohibited from practicing without adequate supervision, which was Davis’s purpose in hiring Dr. Borup. Davis claimed he never intended to practice medicine without a license, but the court held a finding of intent is unnecessary to impose discipline. Davis’s attempted good-faith defense—he had consulted the California Physician Assistant’s and Supervising Physician’s Handbook and its author—did not immunize him from discipline because of the Board’s central mission to protect the public.

Additionally, the court held the ALJ’s finding of false advertising was supported by Davis’s misleading statements, especially his adopted title of “Director of Surgery.” Statements about who would perform surgeries supported the ALJ’s finding that Davis engaged in repeated acts of negligence and failed to obtain informed consent. Finally, the court upheld the revocation of Davis’s license. The court determined that substantial evidence supported the ALJ’s determination that the public would not be protected if Davis retained his license, and rejected Davis’s contention that the ALJ ignored mitigating factors.

The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission.

For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or htwatson@horvitzlevy.com.