May 5, 2020

The Court of Appeal of the State of California Second Appellate District Division Two (“California Appellate Court”), in its published opinion filed on March 24, 2020, slashed the California medical malpractice trial court’s award of noneconomic damages in the amount of $4,250,000 to $250,00, pursuant to California’s cap on noneconomic damages in medical malpractice cases, finding that an exception to application of the cap did not apply in this case.

The plaintiff’s daughter died from malignant melanoma when she was about four years old. The mother prevailed in her California medical malpractice negligence case against three doctors and two physician assistants. The trial court awarded noneconomic damages of $4.25 million, but reduced those damages to $250,000 pursuant to Civil Code section 3333.2, subdivision (b).

The plaintiff argued on appeal that the reduction in damages was improper because the conduct of the two defendant physician assistants fell within a proviso excluding certain conduct from the statutory damages reduction, relying on section 3333.2, subdivision (c)(2), which provides that noneconomic damages against a health care provider for negligent professional services is limited to $250,000 “provided that such services 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.” Specifically, the plaintiff argued that the negligence of the physician assistants is included within the scope of this proviso because the physician assistants acted without the supervision of a physician in violation of the governing statutes and regulations.

The California Appellate Court stated, “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. 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.”

The California Appellate Court held: “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.”

The California Appellate Court explained: “once a physician undertakes to supervise a physician assistant and forms an agency relationship with the assistant, the scope of the supervising physician’s license (and any restrictions on it) define the tasks that the assistant may perform … a standard for determining whether a physician assistant is acting outside the scope of his or her license that is based on the adequacy of supervision rather than the legal responsibility to supervise would make the MICRA damages limitation dependent on whether a supervising physician acts contrary to professional standards … [a] rule that would exclude a physician assistant’s conduct from the damages limitation in MICRA simply because a supervising physician violates some or all of the governing regulations would contravene our Supreme Court’s decision in Bourhis that conduct is not outside the scope of a license merely because it violates professional standards … [p]ermitting an unlimited award of noneconomic damages against the physician assistant and only a limited award against the supervising physician based upon the same harm would be both irrational and inconsistent with MICRA’s goal of predictability in damage awards.”

A dissenting opinion stated, in part: “the trial court erred when it reduced the $4.25 million award for noneconomic damages to $250,000,” noting that one of the defendant physician assistants “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.” The dissenter concluded the same with regard to the other defendant physician assistant, stating that he “operated autonomously, and … did not operate under guidelines.”

Source Lopez v. Ledesma, B284452.

Apparently, the value of a four-year-old’s death (life cut short) due to medical negligence in California is $250,000, at the most.

If you or a loved one were harmed due to physician assistant negligence in California or in another U.S. state, you should find a medical malpractice attorney in California or in your state who may investigate your physician assistant medical malpractice claim for you and represent you or your loved one in a physician assistant medical malpractice case, if appropriate.

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