MICRA covers physician assistants who have enforceable agency agreements with supervising physicians.
Marisol Lopez took her infant daughter Olivia to a dermatology clinic owned by Dr. Glenn Ledesma to assess a spot developing on Olivia’s scalp. Physician assistant Suzanne Freesemann examined Olivia and requested her insurer to approve an “excision and biopsy.” Brian Hughes, another physician assistant at the clinic, saw Olivia one month later and performed a “shave biopsy” of the lesion. The doctor who examined the biopsied tissue found no malignancy. At a follow-up visit, Hughes noted that Olivia’s biopsy wound was healing well and told Lopez that there was nothing to worry about. Several months later, Lopez noticed that Olivia’s lesion was growing back and returned to the clinic. Freesemann assessed the new growth as “warts” and burned them off with liquid nitrogen. A few months later, Lopez brought Olivia back to the clinic because her lesion was “bigger, darker and not uniform in color.” Hughes examined Olivia, concluded once again that the growth was warts, and referred her to a general surgeon to have them removed. A general surgeon excised the lesion and provided the tissue to a pathologist, who did not find any malignancy. About a year later, Olivia developed a bump on her neck. The surgeon removed the neck mass and referred her to an oncologist who diagnosed metastatic malignant melanoma. Olivia died shortly thereafter.
Lopez sued the physicians and the physician assistants for the wrongful death of her daughter. The trial court found that both Fresemann and Hughes had enforceable agency relationships with supervising physicians, but that they received little to no actual supervision and therefore failed to operate under required supervisory guidelines. The court further found that Freesemann and Hughes negligently failed to diagnose Olivia’s condition or to seek needed physician guidance. The court awarded Lopez $11,200 in economic damages and $4.25 million in noneconomic damages, but reduced the noneconomic damages to $250,000 under the MICRA cap. (Civ. Code, § 3333.2, subd. (b).) The court rejected Lopez’s argument that the MICRA limit was inapplicable to the physician assistants because they violated physician supervision regulations. Lopez appealed.
The Court of Appeal affirmed the application of the MICRA cap, in a split decision. Section 3333.2 limits the MICRA cap to “services . . . within the scope of services for which the provider is licensed . . . .” Lopez argued that the negligent physician assistants acted outside that scope—without the required supervision of a physician. The majority disagreed, holding that the physician assistants acted within the scope of their licenses by having legally enforceable agency agreements with a supervising physician regardless of the quantity, quality, or actuality of that supervision. MICRA’s damages cap was therefore properly applied by the trial court. The dissent opined that physician assistants fail to practice within their license restrictions if they knowingly practiced autonomously without any meaningful physician supervision.
The bulletin describing the California Court of Appeal 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.