Lopez v. Ledesma

IN THE SUPREME COURT OF

CALIFORNIA

MARISOL LOPEZ,

Plaintiff and Appellant,

v.

GLENN LEDESMA et al.,

Defendants and Appellants;

BERNARD KOIRE,

Defendant and Respondent.

S262487

Second Appellate District, Division Two

B284452

Los Angeles County Superior Court

BC519180

February 24, 2022

Justice Liu authored the opinion of the Court, in which Chief

Justice Cantil-Sakauye and Justices Corrigan, Kruger,

Groban, Jenkins, and Meehan* concurred.

*

Presiding Justice of the Court of Appeal, Fifth Appellate

District, assigned by the Chief Justice pursuant to article VI,

section 6 of the California Constitution.

LOPEZ v. LEDESMA

S262487

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

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Opinion of the Court by Liu, J.

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.)

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

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“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

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Opinion of the Court by Liu, J.

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 (Lopez).) The Court of Appeal rejected this argument and

affirmed the trial court’s reduction in damages. (Lopez, at

pp. 985, 999.) 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.) Justice

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Opinion of the Court by Liu, J.

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 (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.) “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.)

In the Legislature’s view, “[t]he continuing availability of

adequate medical care depends directly on the availability of

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adequate insurance coverage, which in turn operates as a

function of costs associated with medical malpractice litigation.”

(Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital

(1994) 8 Cal.4th 100, 111 (Western Steamship).) “Accordingly,

MICRA includes a variety of provisions all of which are

calculated to reduce the cost of insurance by limiting the amount

and timing of recovery in cases of professional negligence.”

(Ibid.)

Section 3333.2 is one such provision. It provides: “(a) In

any action for injury against a health care provider based on

professional negligence, the injured plaintiff shall be entitled to

recover noneconomic losses to compensate for pain, suffering,

. . . and other nonpecuniary damage. [¶] (b) In no action shall

the amount of damages for noneconomic losses exceed two

hundred fifty thousand dollars ($250,000).” It defines

“professional negligence” as “a negligent act or omission to act

by a health care provider in the rendering of professional

services, which act or omission is the proximate cause of a

personal injury or wrongful death, 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.” (§ 3333.2, subd. (c)(2).)

In the same year it passed MICRA, the Legislature

enacted the Physician Assistant’s Practice Act (PAPA). This

latter act established the position of “physician assistant” to

address “the growing shortage and geographic maldistribution

of health care services in California.” (Bus. & Prof.

Code, § 3500.) The act aims “to encourage the effective

utilization of the skills of physicians . . . by enabling them to

work with qualified physician assistants to provide quality

care.” (Ibid., as amended by Stats. 2019, ch. 707, § 1. ) It defines

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a “physician assistant” as “a person who meets the requirements

of this chapter and is licensed by the [Physician Assistant

B]oard.” (Bus. & Prof. Code, § 3501, subd. (d).) To practice as a

physician assistant, an individual must complete an approved

training program and pass a licensing examination. (Id., § 3519,

subds. (a), (b).) Once licensed, a physician assistant may

perform medical services “under the supervision of a licensed

physician.” (Id., § 3502, subd. (a)(1).) Several sections of the

PAPA were amended effective January 1, 2020, pursuant to

Senate Bill No. 697 (2019–2020 Reg. Sess.). (See Stats. 2019,

ch. 707.) We apply the law as it existed at the time of the

relevant events.

The issue in this case is whether section 3333.2’s cap on

noneconomic damages applies to actions against physician

assistants where a licensed physician has legal responsibility for

supervising the physician assistant but provides minimal or no

actual supervision. We review this question of statutory

interpretation de novo. (People v. Prunty (2015) 62 Cal.4th 59,

71; Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 801.)

We turn first to the language of the statute. As noted,

section 3333.2 applies only to actions “based on professional

negligence.” (§ 3333.2, subd. (a).) The definition of “professional

negligence” in section 3333.2 has four elements: (1) “a negligent

act or omission to act by a health care provider in the rendering

of professional services,” (2) “which act or omission is the

proximate cause of a personal injury or wrongful death,”

(3) “provided that such services are within the scope of services

for which the provider is licensed,” and (4) “which are not within

any restriction imposed by the licensing agency or licensed

hospital.” (§ 3333.2, subd. (c)(2).) The parties do not dispute

that the first two elements are satisfied. The question is

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whether a physician assistant who receives negligible

supervision from his or her supervising physician provides

services outside “the scope of services for which the provider is

licensed” or “within [a] restriction imposed by the licensing

agency or licensed hospital.” (Ibid.) We address these elements

in turn.

A.

The language “scope of services for which the provider is

licensed” (§ 3333.2, subd. (c)(2)) is naturally understood as the

general range of activities encompassed by the provider’s

license. A psychiatrist, for instance, is licensed to provide

psychiatric treatment. Thus, a psychiatrist’s conduct arising

out of the course of psychiatric treatment falls within the scope

of services for which the psychiatrist is licensed. (See Waters v.

Bourhis (1985) 40 Cal.3d 424, 436 (Bourhis) [“it is clear that the

psychiatrist’s conduct arose out of the course of the psychiatric

treatment he was licensed to provide”].) By contrast, a

“psychologist perform[ing] heart surgery” does not provide

services within the scope of his or her license. (Ibid.)

The PAPA and the regulations promulgated by the

Physician Assistant Board set forth the medical services that a

licensed physician assistant “may perform.” (Bus. & Prof.

Code, former § 3502, subd. (a); see Cal. Code Regs., tit. 16,

§ 1399.540, subd. (a).) “A physician assistant may only provide

those medical services which he or she is competent to perform

and which are consistent with the physician assistant’s

education, training, and experience, and which are delegated in

writing by a supervising physician who is responsible for the

patients cared for by that physician assistant.” (Cal. Code Regs.,

tit. 16, § 1399.540, subd. (a).) During the relevant time period,

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the writing that delegated medical services to a physician

assistant was called a DSA. (Id., § 1399.540, subd. (b).) A

physician assistant “may perform” the services delegated in the

DSA when the services are rendered “under the supervision of a

licensed physician and surgeon.” (Bus. & Prof. Code, former

§ 3502, subd. (a).) In addition to these general rules, the PAPA

specifies particular areas of practice, such as “[t]he practice of

dentistry,” that physician assistants may not perform even

under the supervision of a licensed physician. (Id., former

§ 3502, subd. (d).)

The question here is whether a physician assistant who

establishes a legal relationship with a supervising physician

through a DSA, but in practice receives minimal or no

supervision, is nonetheless practicing within “the scope of

services for which the provider is licensed.” (§ 3333.2,

subd. (c)(2).) Because a physician assistant is only authorized

to perform services “when the services are rendered under the

supervision of a licensed physician and surgeon,” this boils down

to a question of what it means for a physician assistant to be

“under the supervision” of a licensed physician. (Bus. & Prof.

Code, former § 3502, subd. (a).)

According to Lopez, that phrase means that the level of

supervision provided by the assigned supervising physician

must be adequate under the governing statutes and regulations.

By contrast, Freesemann and Hughes contend that a physician

assistant is “under the supervision” of a licensed physician so

long as the physician has taken on the legal responsibility to

supervise the physician assistant through the formation of a

DSA, regardless of the adequacy of supervision at any given

time. Both are reasonable interpretations of the statute’s

ambiguous text. But we do not read the text in a vacuum; our

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task is to construe the statutory language in a manner that

“comports most closely with the apparent intent of the

Legislature, with a view to promoting rather than defeating the

general purpose of the statute, and avoid an interpretation that

would lead to absurd consequences.” (People v. Jenkins (1995)

10 Cal.4th 234, 246.)

The version of Business and Professions Code section 3501

that applies to this case defined “supervision” to mean that a

licensed physician “oversees the activities of, and accepts

responsibility for, the services rendered by the physician

assistant.” (Bus. & Prof. Code, former § 3501, subd. (a)(6) [now

subd. (f)(1)].) This language suggests that a physician

“supervis[es]” a physician assistant when the physician

undertakes legal responsibility for the physician assistant’s

conduct. While that provision has recently been amended to

additionally specify that supervision requires “[a]dherence to

adequate supervision as agreed to in the practice agreement,”

the amended law is not before us today. (Bus. & Prof. Code,

§ 3501, subd. (f)(1)(A).)

Further, as noted, the Legislature enacted MICRA “in

response to rapidly increasing premiums for medical

malpractice insurance” that threatened the availability of

adequate medical care in California. (Preferred Risk Mutual

Ins. Co. v. Reiswig (1999) 21 Cal.4th 208, 214; see Western

Steamship, supra, 8 Cal.4th at p. 111.) “MICRA provisions

should be construed liberally in order to promote the legislative

interest . . . to reduce [these] premiums.” (Preferred Risk, at

p. 215.) The act aims “to contain the costs of malpractice

insurance by controlling or redistributing liability for damages,

thereby maximizing the availability of medical services to meet

the state’s health care needs.” (Western Steamship, at p. 112.)

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“Section 3333.2 constitutes a key component of this program.”

(Western Steamship, at p. 114.) The $250,000 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

(1998) 19 Cal.4th 629, 641 (Salgado).) An interpretation of the

“scope of services” proviso based on adequacy of supervision

“would threaten not only this goal but also the broader purpose

of MICRA” (Western Steamship, at p. 112) for several reasons.

First, a standard based on adequacy of supervision could

create inconsistencies in damages depending on whether a

plaintiff sues the supervising physician or the physician

assistant. A supervising physician who provides inadequate

supervision to a physician assistant may be directly liable for

his or her own negligence. (See Delfino v. Agilent Technologies,

Inc. (2006) 145 Cal.App.4th 790, 815 [“Liability for negligent

supervision and/or retention of an employee is one of direct

liability for negligence, not vicarious liability.”].) Under such a

theory of liability, any noneconomic damages would be subject

to the cap in section 3333.2 because a supervising physician who

negligently supervises a physician assistant who commits

malpractice acts “within the scope of services for which the

provider is licensed.” (§ 3333.2, subd. (c)(2).) But, in Lopez’s

view, if the plaintiff pursued a negligence claim against the

physician assistant, the limit on noneconomic damages would

not apply because the inadequate supervision would render the

physician assistant outside the scope of his or her license.

“Permitting 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

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predictability in damage awards.” (Lopez, supra, 46

Cal.App.5th at p. 998.)

Second, the regulations governing physician assistants

place most of the onus of ensuring compliance with day-to-day

supervisory obligations on the supervising physician, not the

physician assistant. Those regulations provide that a

“supervising physician shall be available in person or by

electronic communication at all times when the physician

assistant is caring for patients,” a “supervising physician shall

observe or review evidence of the physician assistant’s

performance” of all delegated tasks and procedures, and a

“supervising physician has continuing responsibility to . . . make

sure that the physician assistant does not function

autonomously.” (Cal. Code Regs., tit. 16, § 1399.545, subds. (a),

(c), (f).) 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.

The trial court in this case found it likely that Freesemann

and Hughes knew they were not adequately supervised. To take

into account a physician assistant’s knowledge, one could craft

a rule that deems a physician assistant’s services to be outside

the scope of his or her license when the physician assistant

knows that the supervising physician violated a supervisory

obligation and the physician assistant proceeds to treat patients

nonetheless. It may be that such a rule would protect the health

and welfare of some patients by disincentivizing physician

assistants from acting autonomously in the face of known

supervisory violations.

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But such a rule, which no party urges us to adopt, would

require case-by-case inquiry into the nature, timing, and extent

of a physician assistant’s knowledge of lapses in supervision. In

circumstances where an injury is attributable to multiple

lapses, would it be enough to take a physician assistant’s

activities outside the scope of his or her license if the physician

assistant knows of some but not all of the lapses? And for what

period of time in relation to the injury must the physician

assistant know of the lapses? The latter question may be

especially relevant in the context of a missed diagnosis or failure

to provide appropriate treatment over several months or years.

Detailed inquiry into and potential litigation over these fact-

intensive questions would be at odds with MICRA’s goal of

ensuring predictability in damage awards. Moreover, it remains

the case that such knowingly autonomous conduct by physician

assistants constitutes professional negligence that may result in

legal liability (albeit limited by MICRA) and professional

discipline. Although these consequences do not go as far as

Lopez would like, they do disincentivize rogue conduct in the

known absence of meaningful supervision.

An interpretation of the “scope of services” proviso based

on the legal agency relationship between the supervising

physician and physician assistant avoids the unpredictability

discussed above. Under this interpretation, a physician

assistant acts within the scope of his or her license as long as he

or she acts under an established agency relationship with a

licensed physician, provides the type of medical services he or

she is authorized to provide as the physician’s agent, and does

not engage in an area of practice prohibited by the PAPA.

A standard based on the formation of a legal agency

relationship also comports with MICRA’s goal “to control and

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reduce medical malpractice insurance costs.” (Salgado, supra,

19 Cal.4th at p. 641.) “In medical malpractice litigation,

noneconomic damages typically account for a large part of a total

damage award and, therefore, a large part of the insurance

carriers’ expense.” (Perry v. Shaw (2001) 88 Cal.App.4th 658,

668 (Perry).) The size of noneconomic damage awards against a

physician assistant affects the supervising physician’s

insurance premiums because after an agency relationship is

formed, the supervising physician is legally responsible for any

malpractice committed by the physician assistant. (See Cal.

Code Regs., tit. 16, § 1399.545, subd. (f) [“The supervising

physician shall be responsible for all medical services provided

by a physician assistant under his or her supervision.”].) The

risk of unpredictable, large noneconomic damage awards

against a physician assistant therefore may impact the

malpractice insurance premiums of both the physician assistant

and the supervising physician.

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,

and the Legislature is well equipped to weigh and reweigh the

competing policy considerations. But our role is confined to

interpreting the statute before us in the manner that comports

most closely with the Legislature’s purpose in enacting MICRA.

We hold that a physician assistant practices within the scope of

his or her license for purposes of MICRA’s cap on noneconomic

damages when the physician assistant acts as the agent of a

licensed physician, performs the type of services authorized by

that agency relationship, and does not engage in an area of

practice prohibited by the PAPA. (Bus. & Prof. Code, former

§ 3502, subd. (d).)

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B.

Next, we turn to the proviso exempting from section

3333.2 services that are “within any restriction imposed by the

licensing agency or licensed hospital.” (§ 3333.2, subd. (c)(2).)

In Bourhis, we interpreted an identical provision in another

section of MICRA. (Bourhis, supra, 40 Cal.3d at pp. 435–436;

see Bus. & Prof. Code, § 6146, subd. (c)(3).) Bourhis involved a

psychiatrist who allegedly induced the plaintiff “to participate

in sexual conduct by suggesting that it was part of the therapy

designed to alleviate her sexual inhibitions, and at other times

he coerced her to participate by threatening to have her

institutionalized if she did not cooperate.” (Bourhis, at p. 428.)

The case settled before trial, and the attorney retained a higher

percentage of the settlement amount than he would have been

permitted to retain under the MICRA contingency fee limitation

in Business and Professions Code section 6146. (Bourhis, at

pp. 427–428.)

The attorney argued on appeal that “because sexual

misconduct by a psychiatrist toward a patient has long been a

basis for disciplinary action by the state’s licensing agency

[citation], any cause of action which is based on such misconduct

falls within the proviso, as a ‘restriction imposed by the licensing

agency.’ ” (Bourhis, supra, 40 Cal.3d at p. 436, fn. omitted.) We

rejected this argument, explaining that the proviso “obviously

was not intended to exclude an action from section 6146 — or

the rest of MICRA — simply because a health care provider acts

contrary to professional standards or engages in one of the many

specified instances of ‘unprofessional conduct.’ Instead, it was

simply intended to render MICRA inapplicable when a provider

operates in a capacity for which he is not licensed — for

example, when a psychologist performs heart surgery.” (Ibid.)

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We held that “the psychiatrist’s conduct arose out of the course

of the psychiatric treatment he was licensed to provide.” (Ibid.)

Lopez argues that a physician assistant who treats

patients without adequate supervision renders services “within

[a] restriction imposed by the licensing agency.” (§ 3333.2,

subd. (c)(2).) We disagree. The trial court found that the

negligible supervision in this case violated several regulations

governing the conduct of supervising physicians and physician

assistants. (See, e.g., Cal. Code Regs., tit. 16, §§ 1399.545,

subds. (a) [“A supervising physician shall be available in person

or by electronic communication at all times when the physician

assistant is caring for patients.”], (f) [“The supervising physician

has continuing responsibility to follow the progress of the

patient and to make sure that the physician assistant does not

function autonomously.”], 1399.540, subd. (d) [“A physician

assistant shall consult with a physician regarding any task,

procedure or diagnostic problem which the physician assistant

determines exceeds his or her level of competence or shall refer

such cases to a physician.”].) But these regulations, which

describe various requirements of appropriate supervision, are

not restrictions imposed by a physician assistant’s licensing

agency. As we explained in Bourhis, the proviso was not

intended to exclude an action from MICRA “simply because a

health care provider acts contrary to professional standards or

engages in one of the many specified instances of ‘unprofessional

conduct.’ Instead, it was simply intended to render MICRA

inapplicable when a provider operates in a capacity for which he

is not licensed . . . .” (Bourhis, supra, 40 Cal.3d at p. 436.)

The PAPA provides several examples of restrictions that,

if imposed by the licensing agency, would limit a physician

assistant’s license and place particular services outside the

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ambits of MICRA. The Physician Assistant Board may issue a

probationary license that imposes “[r]estrictions against

engaging in certain types of medical services” or “restrictions on

issuing a drug order for controlled substances.” (Bus. & Prof.

Code, former § 3519.5, subd. (a)(7), (2).) And when a physician

assistant is accused of engaging in “unprofessional conduct,”

including the violation of the supervisory regulations at issue

here, the Physician Assistant Board may, after a hearing,

impose “probationary conditions upon a [physician assistant]

license.” (Id., § 3527, subd. (a).) Such probationary conditions

would by definition amount to a “restriction imposed by the

licensing agency.” (Civ. Code, § 3333.2, subd. (c)(2).) But

unprofessional conduct, without more, does not. We agree with

the Court of Appeal that “the ‘restriction’ mentioned in this

clause must be a limitation on the scope of a provider’s practice

beyond simply the obligation to adhere to standards of

professional conduct.” (Lopez, supra, 46 Cal.App.5th at p. 997,

fn. 17.)

If unprofessional conduct of the kind at issue here were

alone sufficient to trigger the “within any restriction imposed by

the licensing agency” proviso in section § 3333.2,

subdivision (c)(2), then medical malpractice plaintiffs could

avoid MICRA’s damages cap by identifying one member of a

health care team who violates a single regulation governing that

team. That individual, and potentially the supervising

physician under a theory of vicarious liability, would then be

subject to unlimited liability for noneconomic damages.

Allowing medical malpractice plaintiffs to avoid the MICRA cap

in this way would be at odds with MICRA’s purpose to “control

and reduce medical malpractice insurance costs by placing a

predictable, uniform limit on a defendant’s liability for

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Opinion of the Court by Liu, J.

noneconomic damages.” (Salgado, supra, 19 Cal.4th at p. 641.)

Neither the language of MICRA nor the legislative history

provides any indication that the Legislature intended to enact

such a broad exemption from the cap. We hold that a physician

assistant does not render services “within [a] restriction

imposed by the licensing agency” (§ 3333.2, subd. (c)(2)) simply

by engaging in unprofessional conduct, such as the

noncompliance with supervisory regulations at issue in this

case.

C.

Lopez cites Perry for the proposition that MICRA’s cap on

noneconomic damages should be construed narrowly. But the

Court of Appeal in Perry reached no such conclusion. Instead,

the court declined to apply MICRA’s cap on noneconomic

damages to intentional torts because “section 3333.2 applies

only in actions ‘based on professional negligence,’ ” and nothing

in the legislative history “suggest[s] the Legislature intended to

exempt intentional wrongdoers from liability by treating such

conduct as though it had been nothing more than mere

negligence.” (Perry, supra, 88 Cal.App.4th at p. 669.) No

intentional wrongdoing is at issue here.

Lopez also argues that the “purpose of [s]ection 3333.2 is

to provide a benefit to health care professionals” by limiting

their liability for noneconomic damages and that physician

assistants who act without adequate supervision should not

“reap the benefits” of MICRA’s “protections.” But this

misapprehends the purpose of the noneconomic damages cap.

“ ‘[T]he $250,000 limitation . . . does not reflect a legislative

determination that a person injured as a result of medical

malpractice does not suffer such damages’ ” and “is not a

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Opinion of the Court by Liu, J.

legislative attempt to estimate the true damages suffered by

plaintiffs.” (Salgado, supra, 19 Cal.4th at p. 641.) Nor is it a

licensing provision or part of a code of professional standards

designed to protect health care providers who adhere to certain

standards or comply with particular statutes and regulations.

Rather, the $250,000 cap is an “attempt to control and reduce

medical malpractice insurance costs.” (Ibid.) The damages cap

inherently concerns health care providers alleged or proven to

have engaged in negligent conduct; it is not designed to reward

or protect health care providers who, acting within the scope of

their education and training, adhere to professional standards

while exempting those who do not.

Lopez further argues that because Freesemann’s and

Hughes’s conduct could subject them to professional discipline

or criminal liability, the conduct is not “professional negligence”

under section 3333.2. But the question of whether a physician

assistant’s conduct provides a basis for professional discipline or

criminal liability is distinct from the question of whether such

conduct constitutes “professional negligence” within the

meaning of section 3333.2. As we have held, MICRA may apply

to the misconduct of a health care provider even if the

misconduct could serve as the basis for professional discipline.

(Bourhis, supra, 40 Cal.3d at p. 436 [rejecting defendant’s

argument that MICRA does not apply because “sexual

misconduct by a psychiatrist toward a patient has long been a

basis for disciplinary action by the state’s licensing agency”].)

Likewise, the possibility that criminal liability could

attach to a health care provider’s conduct does not necessarily

render MICRA inapplicable. In Bourhis, we held that MICRA

applied to an action against a psychiatrist who compelled his

patient to submit to sexual intercourse by “threatening to have

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LOPEZ v. LEDESMA

Opinion of the Court by Liu, J.

her institutionalized if she did not cooperate.” (Bourhis, supra,

40 Cal.3d at p. 428.) It is possible that such conduct could give

rise to criminal liability. (Pen. Code, § 261.) But we held that

the limitation on damages still governed because “the

psychiatrist’s conduct arose out of the course of the psychiatric

treatment he was licensed to provide.” (Bourhis, at p. 436; see

also Larson v. UHS of Rancho Springs, Inc. (2014)

230 Cal.App.4th 336, 351–352; David M. v. Beverly Hospital

(2005) 131 Cal.App.4th 1272, 1278.)

Neither our case law nor the language of MICRA suggests

that the possibility of professional discipline or criminal liability

necessarily places a health care provider’s actions outside “the

scope of services for which [he or she] is licensed” or “within any

restriction imposed by the licensing agency or licensed hospital.”

(§ 3333.2, subd. (c)(2).) We thus conclude that the fact that

Freesemann’s and Hughes’s conduct could give rise to

professional discipline or criminal liability does not render

MICRA inapplicable.

III.

We also granted review on a second issue: whether a 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

consider this issue, which was neither raised in the trial court

nor timely raised in the Court of Appeal.

The trial court held that the DSA between Dr. Ledesma

and Freesemann was nominally in effect at the time of

Freesemann’s clinical encounters with O.S. because “[n]either

party formally revoked the DSA.” Likewise, the trial court held

that Dr. Koire and Hughes “had a [supervising

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LOPEZ v. LEDESMA

Opinion of the Court by Liu, J.

physician-physician assistant] relationship” by virtue of their

DSA. Lopez raised no challenge to these findings in the trial

court. Nor did Lopez challenge these findings in her briefing in

the Court of Appeal.

In her petition for rehearing before the Court of Appeal,

Lopez argued for the first time that there was no DSA legally in

effect between Dr. Ledesma and Freesemann because the DSA

was “revoked by operation of law” due to “incapacity of the

principal.” In her petition for review before this court, Lopez

argued for the first time that the DSA between Dr. Koire and

Hughes had also been revoked.

“[A] reviewing court ordinarily will not consider a

challenge to a ruling if an objection could have been but was not

made in the trial court.” (In re S.B. (2004) 32 Cal.4th 1287,

1293.) As a matter of policy, “we normally do not consider any

issue that could have been but was not timely raised in the briefs

filed in the Court of Appeal.” (Flannery v. Prentice (2001) 26

Cal.4th 572, 591 (Flannery); Cal. Rules of Court, rule

8.500(c)(1).)

Lopez asks us to exercise our discretion to consider an

issue of DSA revocation that was neither raised in the trial court

nor timely raised in the Court of Appeal. (See Midland Pacific

Building Corporation v. King (2007) 157 Cal.App.4th 264, 276.)

But Lopez’s case-specific argument that the disabilities of Dr.

Ledesma and Dr. Hughes severed the agency relationship

established in their respective DSAs does not raise “ ‘extremely

significant issues of public policy and public interest’ [citation]

such as may have caused us on infrequent prior occasions to

depart from” our ordinary policy. (Flannery, supra, 26 Cal.4th

at p. 591.) Moreover, it turns on facts not addressed by the trial

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Opinion of the Court by Liu, J.

court, such as the severity of Dr. Ledesma’s disability. We

therefore decline to consider this issue.

CONCLUSION

We affirm the judgment of the Court of Appeal.

LIU, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

MEEHAN, J.*

*

Presiding Justice of the Court of Appeal, Fifth Appellate

District, assigned by the Chief Justice pursuant to article VI,

section 6 of the California Constitution.

22

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion Lopez v. Ledesma

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 46 Cal.App.5th 980

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S262487

Date Filed: February 24, 2022

__________________________________________________________

Court: Superior

County: Los Angeles

Judge: Lawrence P. Riff

__________________________________________________________

Counsel:

Esner, Chang & Boyer, Stuart B. Esner; Law Office of Neil M. Howard

and Neil M. Howard 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 and Zena

Jacobsen for Defendants and Appellants.

Reback, McAndrews & Blessey and Thomas F. McAndrews for

Defendant and Appellant Glen Ledesma.

LaFollette Johnson De Haas Fesler & Ames and Louis DeHaas for

Defendant and Appellant Suzanne Freesemann.

Peterson Bradford Burkwitz and Avi A. Burkwitz for Defendant and

Appellant Brian Hughes.

Fred J. Hiestand for the Civil Justice Association of California as

Amicus Curiae on behalf of Defendants and Appellants.

Tucker Ellis and Traci L. Shafroth 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 for Defendant and Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Stuart B. Esner

Esner, Chang & Boyer LLP

234 East Colorado Boulevard, Suite 975

Pasadena, CA 91101

(626) 535-9860

Matthew S. Levinson

Cole Pedroza LLP

2295 Huntington Drive

San Marino, CA 91108

(626) 431-2787