MICRA limitations apply to unsupervised acts

On Thursday, the California Supreme Court affirmed that the state's cap on noneconomic damages under the Medical Injury Compensation Reform Act applies to losses caused by the unsupervised acts of physician assistants. Lopez v. Ledesma, 2022 DJDAR 1827 (Feb. 24, 2022).

The court specifically held that a physician assistant practices within the scope of his or her license for purposes of MICRA's cap (Civil Code Section 3333.2) when the physician assistant (1) acts as the agent of a licensed physician, (2) performs the type of services authorized by that agency relationship, and (3) does not engage in an area of practice prohibited by the Physician Assistant's Practice Act (Bus. & Prof. Code Section 3502(d)).

The court further found that a physician assistant who treats patients without adequate supervision does not render services within a restriction imposed by the licensing agency as violations of the regulations governing the conduct of supervising physicians or assistant physicians do not constitute restrictions imposed by a physician assistant's licensing agency.

MICRA limits recovery of noneconomic losses for pain, suffering, and other nonpecuniary damage for a health care provider's professional negligence to $250,000. This cap was designed to control and reduce medical malpractice insurance costs by placing a predictable, uniform limit on the defendant's liability for noneconomic damages. Salgado v. County of Los Angeles, 19 Cal. 4th 629, 641 (1998). MICRA provisions should be construed liberally in order to promote the legislative interest to reduce these premiums.

California's Legislature enacted MICRA in 1975 to address a statewide "crisis regarding the availability of medical malpractice insurance" where medical malpractice insurers withdrew from the field or charged "skyrocketing" rates, and many doctors stop performing certain high-risk procedures or treatment, terminating their practice in this state, or practiced without malpractice insurance. As a result, medical care was not fully available in part of the state and patients treated by uninsured doctors faced the prospect of obtaining only unenforceable judgments.

The Legislature further acknowledged that the continued availability of adequate medical care depends on the availability of adequate insurance coverage and the underlying costs associated with malpractice insurance.

In Lopez, the appellant argued that the physician assistants' conduct was excluded from MICRA's coverage for conduct that is (1) outside "the scope of services for which the provider is licensed" or (2) "within any restriction imposed by the licensing agency or licensed hospital."

However, the court held that basing the scope of services exclusion on the adequacy of supervision would threaten MICRA's goal to control and reduce medical malpractice insurance costs as well as the broader purpose of MICRA.

First, an adequacy of supervision standard could create inconsistencies in damages depending on whether a plaintiff sues the supervising physician or the physician assistant. This would be irrational and inconsistent with MICRA's goal of predictability in damage awards.

Second, physicians are primarily responsible for ensuring their supervision of physician assistants. If MICRA's cap does not apply when a physician assistant proceeds with treatment despite knowing the supervising physician violated the supervisory obligation, the health and welfare of some patients may be protected. However, this rule would require a case-by-case inquiry into the physician assistant's knowledge of lapses in supervision, which is at odds with MICRA's goal of ensuring predictability in damage awards. Moreover, physician assistants are already exposed to potential liable for professional negligence for unsupervised treatment (subject to MICRA's cap).

Third, adopting a legal agency relationship between the supervising physician and assistant physician to determine the scope of services avoids unpredictability under MICRA. A physician assistant therefore acts within the scope of licensure where the physician assistant (1) establishes an agency relationship with a licensed physician, (2) provides authorized medical services as the physician's agent, and (3) does not practice in an area prohibited by the PAPA.

Fourth, the Legislature is well equipped to weigh and reweigh competing policy consideration, and the Supreme Court confined its role to interpreting MICRA to comport with the Legislature's purpose.

Further, a physician assistant who treats patients without adequate supervision does not render services within a restriction imposed by the licensing agency.

MICRA's exclusion was simply intended to render MICRA inapplicable when a provider operates in a capacity for which she or he is not licensed. Any violations of the regulations governing the conduct of supervising physicians or assistant physicians do not constitute restrictions imposed by a physician assistant's licensing agency. If fact, MICRA applies even if the misconduct could serve as the basis for professional discipline or criminal liability.

Moreover, removing the MICRA cap for any violation of a single regulation would be further at odds with MICRA's purpose to control and reduce medical malpractice insurance costs. 