Lopez v. Ledesma (Feb. 24, 2022, S262487) __ Cal.5th __ [2022 WL 553421]

MICRA applies to inadequately supervised physician assistants.

Two physician assistants (PAs) failed to timely diagnose a malignant melanoma on an infant who later died. Marisol Lopez, the infant’s mother, sued the PAs and their supervising physicians for medical malpractice and wrongful death. The trial court found for Lopez, but reduced her $4.25 million noneconomic damages award to $250,000 pursuant to the cap in the Medical Injury Compensation Reform Act (MICRA). (Civ. Code, § 3333.2.) Lopez appealed, arguing that the PAs’ conduct fell within MICRA’s exclusion for 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,” because they were practicing with inadequate supervision. The Court of Appeal affirmed, holding that PAs act within the scope of their licenses if they have a legally enforceable agency agreement with a supervising physician, regardless of the quality of that supervision. Lopez petitioned for Supreme Court review.

The Supreme Court granted review and affirmed, holding 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.” The Court rejected Lopez’s argument that adequate supervision was required. The Court explained that the relevant statutory definition of “supervision” is met when a physician undertakes legal responsibility for a PA. Lopez’s proposed standard would undermine MICRA’s goal of reducing malpractice premiums and would lead to inconsistent damages awards whenever a plaintiff sued both a supervising physician (who is covered by MICRA) and a PA (who would not be covered by MICRA under Lopez’s proposed test). Furthermore, PAs have limited ability to control how they are being supervised, and deciding whether to apply MICRA based on whether a PA knew that supervision was inadequate would complicate litigation and reduce the predictability of results, contrary to MICRA’s goals. The Court also reasoned that MICRA was intended to apply when healthcare providers provided inadequate services, provided those services were within the scope of their license, and a PA “does not render services ‘within [a] restriction imposed by the licensing agency’ (citation) simply by engaging in unprofessional conduct, such as the noncompliance with supervisory regulations . . . .” Put simply, the fact that a PA’s “conduct could give rise to professional discipline or criminal liability does not render MICRA inapplicable.”

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, who are partners at the appellate firm 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.