In response to a medical malpractice crisis in the 1970s, which was brought on by a spike in insurance premiums and lack of available malpractice insurance coverage, several states began enacting caps on noneconomic damages (such as those for pain and suffering). California was one of the first and most notable states to place a cap as part of its Medical Injury Compensation Reform Act (MICRA) enacted in 1975. The statute provides that damages for noneconomic losses shall not exceed $250,000 in “any action for injury against a health care provider based on professional negligence.”
This statute has been applied to cases involving physicians since it was enacted. However, the Supreme Court of California recently reviewed a case to determine whether the provision regarding malpractice caps on noneconomic damages applies to actions against PAs who are nominally supervised by a doctor but receive minimal or no actual supervision when performing medical services.
Facts of the Case
Dr L is a dermatologist who owned a dermatology clinic in California. At the time, Dr K was a plastic surgeon who was contracted with the clinic to provide physician services, PA supervision services, and consulting services.
The clinic employed Ms F and Mr H, both PAs. Dr L and Ms F entered into a delegation of services agreement (DSA) that designated Dr L as Ms F’s supervising physician. At around the same time, Mr H signed a DSA with Dr K, the plastic surgeon, designating Dr K as Mr H’s supervising physician.
In December, Mrs M brought her 8-month-old infant, baby M, to the dermatology clinic after she noticed a dark spot on the infant’s scalp. The infant was seen by Ms F who obtained a medical history, examined the infant’s scalp, and recommended an “excision and biopsy” treatment plan.
In January, Mrs M returned with her infant and saw Mr H, who performed a shave biopsy on the lesion and sent the biopsied tissue to be reviewed by a physician. Two weeks later, Mrs M brought the child back for a follow-up visit during which Mr H reviewed the biopsy report and told Mrs M that the lesion was benign and that “everything was normal.”
In June, Mrs M brought the infant back to the clinic after noticing that the lesion was growing back. Ms F assessed the lesion as warts and recommended it be burned off with liquid nitrogen. In July, baby M received the liquid nitrogen treatment at the clinic.
Mrs M brought baby M back again in September after the lesion returned. At this appointment, she was seen by Mr H who also assessed the lesion as warts. Mr H prepared a treatment plan referring baby M to a general surgeon to remove the large growth. Dr K reviewed and countersigned the treatment plan 88 days later. In December, a general surgeon removed the lesion and diagnosed it as “benign pigmented intradermal intermediate congenital nevus.”
Over a year later, Mrs M noticed a bump on baby M’s neck. A physician excised the mass and referred baby M to an oncologist who diagnosed her with metastatic malignant melanoma. Baby M died in February.
The child’s bereaved mother, Mrs M, filed a wrongful death claim asserting negligence against Dr L, Dr K, the 2 PAs (Ms F and Mr H), and others.
The case went to trial and the trial court found in favor of Mrs M on her negligence claims against Ms F and Mr H, holding that they did not take adequate steps to diagnose baby M’s condition and did not seek guidance from a physician. The court held that Dr L was vicariously liable for Ms F’s negligent actions and Dr K was vicariously liable for the negligent actions of Mr H.
The court awarded Mrs M $11,200 in economic damages and $4.25 million in noneconomic damages, but reduced that amount to $250,000 in accordance with California’s malpractice cap on noneconomic damages. Mrs. M appealed, arguing that the cap on damages excludes conduct that is “outside the scope of services for which the provider is licensed,” and that since the 2 PAs were providing care without being properly supervised, they were acting outside the scope of services for which they were licensed. Thus, she argued, the cap should not apply. The appeals court affirmed the trial court’s decision, and Mrs M appealed to the state supreme court.
The ultimate question is whether a PA who establishes a legal relationship with a supervising physician through a DSA, but in practice receives little or no supervision, is nonetheless practicing within “the scope of services for which the provider is licensed.” The court ultimately held that the answer to this question was yes. The court noted that the caps on damages were enacted in response to rapidly increasing premiums for medical malpractice insurance that threatened the availability of adequate medical care in California and thus should be construed liberally to protect legislative intent.
The court noted that regulations governing PAs place most of the onus of ensuring compliance on the supervising physicians. “As a practical matter, a physician assistant may have little ability to monitor or control whether a supervising physician complies with his or her supervisory obligations, such as the obligation to be available at all times.”
“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,” noted the court in its decision. “But our role is confined to interpreting the statute before us in the matter than comports most closely with the Legislature’s purpose in enacting the cap.” The court concluded that the state’s cap on noneconomic damages applies to a PA 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.
Although the PAs in this case were ultimately protected by the malpractice cap on damages, there is no doubt that they failed their patient, and that they, in turn, were failed by their supervising physicians. Open, frequent communication between the PAs and the physicians in this case might have prevented this outcome.
Editor’s note: A legislative deal is currently being worked out in California to raise the state’s malpractice cap starting January 1, 2023.
Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.