Lopez v. Ledesma

• Decision Date: 24 February 2022
• Docket Number: S262487
• Citation: 12 Cal.5th 848,505 P.3d 212,290 Cal.Rptr.3d 532
• Parties: Marisol LOPEZ, Plaintiff and Appellant, v. Glenn LEDESMA et al., Defendants and Appellants; Bernard Koire, Defendant and Respondent.
• Court: California Supreme Court

12 Cal.5th 848

505 P.3d 212

290 Cal.Rptr.3d 532

Marisol LOPEZ, Plaintiff and Appellant,

v. Glenn LEDESMA et al., Defendants and Appellants;Bernard Koire, Defendant and Respondent.

S262487

Supreme Court of California.

February 24, 2022

Esner, Chang & Boyer, Stuart B. Esner, Los Angeles; Law Office of Neil M. Howard and Neil M. Howard, El Segundo, for Plaintiff and Appellant.

Steven B. Stevens for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant.

Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson, San Marino, and Zena Jacobsen for Defendants and Appellants.

Reback, McAndrews & Blessey and Thomas F. McAndrews, Manhattan Beach, for Defendant and Appellant Glen Ledesma.

LaFollette Johnson De Haas Fesler & Ames and Louis DeHaas, Los Angeles, for Defendant and Appellant Suzanne Freesemann.

Peterson Bradford Burkwitz and Avi A. Burkwitz, Burbank, for Defendant and Appellant Brian Hughes.

Fred J. Hiestand, Sacramento, for the Civil Justice Association of California as Amicus Curiae on behalf of Defendants and Appellants.

Tucker Ellis and Traci L. Shafroth, San Francisco, for California Medical Association, California Dental Association, California Hospital Association, California Academy of Physician Assistants, and the American Medical Association as Amici Curiae on behalf of Defendants and Appellants.

Prindle, Goetz, Barnes & Reinholtz, Jack R. Reinholtz and Douglas S. de Heras, Long Beach, for Defendant and Respondent.

Opinion of the Court by Liu, J.

Under a provision of the Medical Injury Compensation Reform Act (MICRA), damages for noneconomic losses shall not exceed $250,000 in "any action for injury against a health care provider based on professional negligence." ( Civ. Code, § 3333.2, subds. (a), (b) ; all undesignated statutory references are to the Civil Code.) An action is based on "professional negligence" and thereby subject to section 3333.2 ’s cap on noneconomic damages only if a health care provider's services are "within the scope of services for which the provider is licensed" and "are not within any restriction imposed by the licensing agency or licensed hospital." ( § 3333.2, subd. (c)(2).)

We granted review to determine whether section 3333.2 applies to actions against physician assistants who are nominally supervised by a doctor but receive minimal or no actual supervision when performing medical services. Construing the statute in light of its purposes and our precedent, we hold 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.

We also granted review on a second issue: whether a delegation of services agreement (DSA) between a supervising physician and a physician assistant is legally effective where the physician is disabled and unable to practice medicine. On closer examination, we decline to decide this issue, which was not considered by the trial court or by the Court of Appeal.

I.

Because no party disputes the trial court's factual findings, we rely on the trial court's statement of decision to summarize the pertinent facts in this case. (See In re Marriage of Fink (1979) 25 Cal.3d 877, 887, 160 Cal.Rptr. 516, 603 P.2d 881.)

Dr. Glenn Ledesma, a dermatologist, owned and operated a dermatology clinic in Southern California. Dr. Bernard Koire, a plastic surgeon, contracted with the clinic to provide physician services, physician assistant supervisor services, and consulting services. Suzanne Freesemann and Brian Hughes worked as physician assistants at the clinic. In 2009, Freesemann and Dr. Ledesma signed a DSA designating Dr. Ledesma as Freesemann's supervising physician. According to the trial court, "Neither party formally revoked the DSA and it was thus nominally ... in effect" at the time of the events giving rise to this case. Hughes and Dr. Koire signed a DSA designating Dr. Koire as Hughes's supervising physician. Although the DSA between Hughes and Dr. Koire was undated, the trial court found that it established a supervising physician-physician assistant relationship.

O.S. was a patient at Dr. Ledesma's dermatology clinic who received treatment from Freesemann and Hughes on several occasions in 2010 and 2011. O.S. first visited the clinic on December 8, 2010, after her mother, Marisol Lopez, noticed a dark spot on O.S.’s scalp when she was seven or eight months of age. During this appointment, Freesemann obtained a medical history, examined O.S.’s scalp, and recommended an "excision and biopsy" treatment plan. On January 3, 2011, Hughes performed a "shave biopsy" of O.S.’s lesion and sent the biopsied tissue to be reviewed by a physician. O.S. attended a followup appointment with Hughes on January 17, 2011, during which Hughes reviewed the biopsy report and found that the biopsied lesion was "benign" and that "everything [was] normal."

Lopez returned to Ledesma's clinic on June 11, 2011, after noticing that O.S.’s lesion was growing back. Freesemann assessed the lesion as "wart(s)" and recommended that it be burned off with liquid nitrogen. O.S. received the liquid nitrogen treatment at the clinic on July 27, 2011. She returned to the clinic on September 9, 2011, after the lesion grew back yet again. During this visit, Hughes assessed the lesion as "warts" and prepared a treatment plan referring O.S. to a general surgeon to remove the "large growth." Dr. Koire reviewed and countersigned the treatment plan 88 days later. In December 2011, a general surgeon removed the lesion and diagnosed it as "benign pigmented intradermal intermediate congenital nevus

."

In early 2013, Lopez noticed a bump on O.S.’s neck. A doctor excised the neck mass and referred O.S. to an oncologist, who diagnosed O.S. with "metastatic malignant melanoma

." O.S. died on February 27, 2014.

At the time of Freesemann's clinical encounters with O.S., Dr. Ledesma was no longer fulfilling any of his supervisory obligations under the 2009 DSA. According to the trial court, Dr. Ledesma was "involved in operating the clinic facilities in a business sense," but "he was no longer in active practice as a physician." During Hughes's clinical encounters with O.S., "Dr. Koire was not available in person or by electronic communications at all times." Dr. Koire also "was no longer engaged in active practice."

In 2013, Lopez filed a medical malpractice action asserting negligence claims against Hughes, Freesemann, Dr. Ledesma, Dr. Koire, and others. After O.S. died, Lopez amended the complaint to assert a wrongful death claim. The trial court found in favor of Lopez on her negligence claims against Freesemann and Hughes, holding that they did not take adequate steps to diagnose O.S.’s condition and did not seek guidance from a physician. The court held that Dr. Ledesma was vicariously liable for the negligent actions of Freesemann and that Dr. Koire was vicariously liable for the negligent actions of Hughes. The court awarded Lopez $11,200 in economic damages. It also awarded Lopez $4.25 million in noneconomic damages but reduced this amount to $250,000 pursuant to MICRA's cap on noneconomic damages. ( § 3333.2, subd. (b).)

On appeal, Lopez argued that the trial court's reduction in damages was improper because Freesemann's and Hughes's conduct fell within the proviso that excludes from section 3333.2 ’s coverage 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." ( § 3333.2, subd. (c)(2) ; see Lopez v. Ledesma (2020) 46 Cal.App.5th 980, 985, 260 Cal.Rptr.3d 386 ( Lopez ).) The Court of Appeal rejected this argument and affirmed the trial court's reduction in damages. ( Lopez , at pp. 985, 999, 260 Cal.Rptr.3d 386.) It held 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." ( Id. at p. 985, 260 Cal.Rptr.3d 386.) Justice Ashmann-Gerst dissented on the ground that Freesemann and Hughes were not permitted to provide care to patients without receiving actual supervision and thus acted outside the scope of services for which they were licensed. ( Id. at pp. 1005–1006, 260 Cal.Rptr.3d 386 (dis. opn. of Ashmann-Gerst, J.).) We granted review.

II.

The Legislature enacted MICRA in 1975 (Stats. 1975, 2d Ex. Sess., ch. 1, § 1, p. 3949; see id. , § 24.6, p. 3969) to address a statewide "crisis regarding the availability of medical malpractice insurance." ( Reigelsperger v. Siller (2007) 40 Cal.4th 574, 577, 53 Cal.Rptr.3d 887, 150 P.3d 764.) "The problem ... arose when the insurance companies which issued virtually all of the medical malpractice insurance policies in California determined that the costs of affording such coverage were so high that they would no longer continue to provide such coverage as they had in the past. Some of the insurers withdrew from the medical malpractice field entirely, while others raised the premiums which they charged to doctors and hospitals to what were frequently referred to as ‘skyrocketing’ rates. As a consequence, many doctors decided either to stop providing medical care with respect to certain high risk procedures or treatment, to terminate their practice in this state altogether, or to ‘go bare,’ i.e., to practice without malpractice insurance. The result was that in parts of the state medical care was not fully available, and patients who were treated by uninsured doctors faced the prospect of obtaining only unenforceable judgments if they should suffer serious injury as a result of malpractice." ( American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 371, 204 Cal.Rptr. 671, 683 P.2d 670.)

In the Legislature's...