Modification: Divino Plastic Surgery, Inc. v. Superior Court (Espinoza)

DIVINO PLASTIC SURGERY, INC. et al.,

Petitioners,

v.

THE SUPERIOR COURT OF SAN DIEGO COUNTY,

Respondent;

MOISES ESPINOZA et al.,

Real Parties in Interest.

No. D079661

(San Diego County

Super. Ct. No. 37-2019-00058375-

CU-MM-CTL)

California Court of Appeal

Fourth Appellate District

Division One

Filed May 19, 2022

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING

NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on April 22, 2022, be modified as follows:

1. On page 9, after the first sentence at the top of the page (ending "qualified to administer anesthesia"), add as footnote 3 the following footnote, which will require the renumbering of all subsequent footnotes:

In a petition for rehearing, the Espinozas complain that in describing their argument this way, we "misstate[d] or miscomprehend[ed] [their] argument" and "missed [their] most important points." Those points are: (1) Hernandez was forbidden by law to administer any anesthetic; (2) Lang acted outside the scope of her nursing license, because she had received no oral or written instructions from Chacon regarding the anesthetics she gave Megan; and (3) Chacon acted outside the scope of his medical license, because he allowed Hernandez to give Megan a local anesthetic and Lang to give Megan a sedative combination of anesthetics without express instructions. The points, which merely restate with minor changes the contention that the Espinozas made in their return and that we addressed in our original opinion, do not warrant rehearing. (See Gentis v. Safeguard Business Systems, Inc. (1998) 60 Cal.App.4th 1294, 1308 [restatement of arguments raised and considered on appeal did not warrant rehearing].) Nevertheless, we have modified the opinion to address more explicitly the newly emphasized points.

2. Delete the first full paragraph on page 9 (beginning "Chacon, as a licensed physician . . . ."), and replace with the following paragraph:

Chacon, as a licensed physician and surgeon, was authorized "to use drugs . . . in or upon human beings and to sever or penetrate the tissues of human beings . . . in the treatment of diseases, injuries, deformities, and other physical and mental conditions." (Bus. & Prof. Code, § 2051.) The administration of anesthesia always involves use of drugs and sometimes penetration of tissues, "is obviously an integral part of the surgical treatment which it facilitates," and thus "com[es] within the practice of medicine" authorized by statute. (Magit v. Board of Medical Examiners (1961) 57 Cal.2d 74, 81 (Magit); accord, PM & R Associates v. Workers' Comp. Appeals Bd. (2000) 80 Cal.App.4th 357, 369.) In performing the augmentation mammoplasty on Megan, Chacon did not have to do everything himself and could use others who were not licensed as physicians and surgeons to administer anesthesia and to perform other supportive tasks. (See Bus. & Prof. Code, § 2061 [Medical Practice Act does not limit practice of other licensed, certified, or registered practitioners of healing arts]; Magit, at pp. 82-83 [nurse may perform some medical acts under physician's direction and supervision].) Lang, as a registered nurse, could administer anesthetics and other drugs ordered by Chacon without his supervision. (Bus. & Prof. Code, § 2725, subd. (b)(2); California Society of Anesthesiologists v. Brown (2012) 204 Cal.App.4th 390, 408; see 67 Ops.Cal.Atty.Gen. 122, 139 (1984) ["a registered nurse may lawfully administer an anesthetic, general or regional, under the authority of subdivision (b) of section 2725 when a physician, . . . acting within the scope of his or her license, orders such nurse to administer the same to a particular patient"].) Hernandez, as a medical assistant, did not have to be licensed and could administer drugs and perform other supportive services under Chacon's authorization and supervision. (Bus. & Prof. Code, § 2069, subds. (a)(1), (c)(1); PM & R Associates, at p. 365.) In sum, the administration of the anesthesia that allegedly caused Megan's death was a type of activity that Chacon and Divino, through its employees, were licensed to perform as health care providers.

3. Delete the first full paragraph on page 10 (beginning "Chacon and Divino did not . . . ."), replace with the following two paragraphs, and add new footnote 4 as indicated, which will require the renumbering of all subsequent footnotes:

Chacon and Divino did not lose their status as health care providers entitled to the protections of section 425.13 merely because the Espinozas allege the manner in which Chacon and Divino's employees performed the acts that caused Megan's death fell outside the scope of the applicable licenses. Instructive on this point is a recent case involving the vicarious liability of physicians for the acts of physician assistants who performed medical services without the statutorily required supervision by the physicians, in which our Supreme Court had to determine whether the services were " '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.' " (Lopez v. Ledesma (2022) 12 Cal.5th 848, 853.) The Supreme Court noted "[t]he language 'scope of services for which the provider is licensed' [citation] is naturally understood as the general range of activities encompassed by the provider's license" (id. at p. 857), and went on to conclude that a health care provider does not act outside the scope of the provider's license or come within a restriction simply by committing unprofessional conduct, such as noncompliance with supervisory regulations, or misconduct that could result in professional discipline or even criminal liability (id. at pp. 864-865). As discussed above, the general range of activities authorized by Chacon's medical license included the administration of anesthesia during the augmentation mammoplasty he performed on Megan. Even if Chacon committed conduct that was unprofessional or that could subject him to discipline or criminal liability by allowing Lang to give Megan sedatives and other anesthetics without an express order from him or by allowing Hernandez to give Megan a local anesthetic,4 under Lopez he did not thereby exceed the scope of services his medical license authorized him to perform. We therefore conclude that although Chacon or his agents might have been acting unlawfully, he was acting as a health care provider within the meaning of section 425.13.

Other cases support our conclusion. (See, e.g., Waters v. Bourhis (1985) 40 Cal.3d 424, 436 (Waters) [psychiatrist's "acts contrary to professional standards" or "instances of 'unprofessional conduct' " that arose out of course of psychiatric treatment were not outside scope of license]; Prince v. Sutter Health Central (2008) 161 Cal.App.4th 971, 977 [registered clinical social worker's alleged violation of statute mandating certain disclosures to patient did "not mean [she] was not a health care provider, nor change the fact that she performed a mental health evaluation"]; Cooper v. Superior Court (1997) 56 Cal.App.4th 744, 749 [gynecologist's use of "incorrect medical procedures" and "improper sexual touching" in examining patient did not cause him to lose protections of section 425.13]; United Western Medical Centers v. Superior Court (1996) 42 Cal.App.4th 500, 505 [intentional misconduct of staff against patient did not cause hospital to lose protections of section 425.13].) Were we to conclude otherwise, a plaintiff could sue a health care provider for punitive damages without complying with section 425.13 simply by alleging the provider acted outside the scope of the license. Such a rule would defeat the "prophylactic purpose" of the statute "to protect health care providers from the onerous burden of defending against meritless punitive damage claims." (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 709.)

4 The Espinozas are correct that a medical assistant may not administer a local anesthetic. (Bus. & Prof. Code, § 2069, subd. (c)(2).) That does not affect our analysis or conclusion, however. Hernandez's administration of a local anesthetic to Megan at Chacon's direction may have constituted unprofessional conduct (id., § 2234, subd. (a) [assisting in violation of any provision of Medical Practice Act is unprofessional conduct]), but as explained in the text that would not by itself take the conduct outside the scope of activities authorized by his medical license. Further, in determining the applicability of section 425.13, "the focus must be upon the allegedly injurious conduct of the health care provider." (Palmer v. Superior Court (2002) 103 Cal.App.4th 953, 962 (Palmer).) An uncontradicted declaration Chacon submitted to the trial court from a board-certified anesthesiologist stated that Hernandez's administration of the local anesthetic did not cause Megan's death. Hernandez's conduct is thus irrelevant to determining the applicability of section 425.13.

4. On page 15, in the second paragraph, delete the citation "(See pp. 13-14, ante.)" and replace with "(See pp. 15-16, ante.)"

5. On page 17, at the end of the first sentence of the last paragraph (ending "untimeliness argument in their return"), add as footnote 7 the following footnote, which will require the renumbering of all subsequent footnotes:

In their petition for rehearing, the Espinozas complain we "MISSED ONE OF [THEIR] MOST IMPORTANT ARGUMENTS REGARDING THE COURT'S AUTHORITY TO GRANT EXTRAORDINARY RELIEF," namely, that they "were not afforded an opportunity to 'respond directly to Chacon's untimeliness argument in their return' " because Chacon raised the argument "as a basis for extraordinary [writ] relief for the first time in [his] reply." This complaint is meritless.

In the introduction to the petition, Chacon stated that "the trial court erroneously granted [the Espinozas'] untimely motion to amend the complaint to add punitive damages." (Italics added.) In a section explaining the necessity of writ relief, Chacon alleged such relief was needed "to correct the trial court's error [in] granting [the Espinozas'] motion to amend the complaint to add an untimely claim for punitive damages." (Italics added.) In the formal allegations of the petition, Chacon included the heading, "[THE ESPINOZAS] MADE AN UNTIMELY MOTION TO AMEND THEIR COMPLAINT TO ADD PUNITIVE DAMAGES IN VIOLATION OF SECTION 425.13," and the allegation that the Espinozas had not complied with the "procedural requirements" of section 425.13. (Italics added.) Although the Espinozas correctly point out that the legal analysis section of the petition does not contain a heading and argument specifically devoted to untimeliness, that is because in the order Chacon is challenging the trial court did not rule on the untimeliness argument he had made in opposition to the Espinozas' motion to amend. Because the trial court instead ruled section 425.13 did not apply to the Espinozas' claim for punitive damages and Chacon had waived any right to demand compliance with the statute, he understandably focused his legal analysis on attacking those grounds. Chacon did not thereby abandon his untimeliness argument or mislead the Espinozas into thinking he was not seeking writ relief on the ground that the trial court had erroneously granted their untimely motion to amend. To the contrary, the Espinozas manifested their awareness of the untimeliness argument in the first paragraph of their informal response, where they quoted the petition and wrote, "They [i.e., Chacon and Divino] maintain '[w]rit relief is necessary to correct the trial court's error [in] granting [the Espinozas'] motion to amend the complaint to add an untimely claim for punitive damages.' " (Italics added.)

The Espinozas thus had the opportunity to respond to Chacon's untimeliness argument but chose not to do so. No rehearing is required to give them another opportunity. (See Save Laurel Way v. City of Redwood City (2017) 14 Cal.App.5th 1005, 1015, fn. 9 [rehearing not warranted to allow party to brief issue that was fairly included in issues raised but party did not address]; Structural Steel Fabricators, Inc. v. City of Orange (1991) 234 Cal.App.3d 1206, 1213 [rejecting as "at best disingenuous" contention rehearing was required to address unbriefed issue when party had acknowledged issue in trial and appellate courts].)

There is no change in the judgment.

The petition for rehearing filed by real parties in interest is denied.

HUFFMAN, Acting P. J.

Copies to: All parties