MICRA Limits Noneconomic Loss Caused by Physician Assistants’ Unsupervised Acts
April 13, 2020
California’s Medical Injury Compensation Reform Act (“MICRA”) of 1975 has limited compensable noneconomic damages against professionally negligent healthcare providers since its inception. MICRA limits damages for negligent professional services causing personal injury or wrongful death if the services are (1) “within the scope of services for which the provider is licensed” and (2) “not within any restriction imposed by the licensing agency or licensed hospital.”
California’s Second District Court of Appeal recently created a “bright-line rule” that a physician assistant acts within the scope of his or her license for purposes of MICRA if he or she has a legally enforceable agency agreement with a supervising physician, regardless of the quality of actual supervision. In doing so, the Court acknowledged that scope of a physician assistant's practice is defined, not by the physician assistant license itself, but by the scope of the practice of the supervising physician.
The Court also refused to premises MICRA’s limitation on the adequacy of supervision because such a rule would (1) be uncertain and difficult to define, and (2) contravene MICRA’s purpose to encourage predictability of damages to reduce insurance premiums.
California’s Medical Injury Compensation Reform Act
California’s legislature enacted MICRA in 1975 to address serious problems caused by a rapid increase in medical malpractice insurance premiums, including threats to the availability of medical care in some parts of the state and the very real possibility that many doctors would practice without insurance leaving injured patients with uncollectible judgments.
In addition, one of the problems identified in legislative hearings was the unpredictability of the size of large noneconomic damage awards, resulting from the inherent difficulties in valuing such damages and the great disparity in amounts different juries placed on such losses.
Lopez v. Ledesma
The Lopez Court noted that a physician assistant’s area of practice is not just defined by their license; rather, a physician assistant is permitted to practice in the area in which the supervising physician practices performing those tasks that the supervising physician delegates. The dispositive factor for determining if a physician assistant is acting outside the scope of licensed services is therefore the presence of a legal agency relationship between the supervising physician and assistant.
First, the physician (not the assistant) is the “health care provider” for MICRA analysis.
Second, conduct is not outside the scope of a license merely because it violates professional standards.
Third, a standard based on the adequacy of supervision would be difficult to define and require a case-by-case determination of whether supervision was sufficient, which risks creating the kind of uncertainty in predicting medical malpractice damage awards that MICRA was enacted to prevent.
Fourth, treating a physician assistant’s conduct as outside the scope of his or her license due to inadequate supervision would create inconsistencies in damage awards depending upon whether a patient sues (1) the physician assistant (with unlimited noneconomic damages) or (2) the supervising physician (with noneconomic damages limited by MICRA). This result would be irrational and inconsistent with MICRA’s goals of predictability in damage awards.
Fifth, the bright-line rule that MICRA limitations apply to physician assistants in a legal agency relationship with a supervising physician is consistent with a liberal construction of MICRA’s provisions to promote the legislative interest in negotiated resolution of medical malpractice disputes and to reduce malpractice insurance premiums.
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 Cal. Civ. Code § 3333.2, subd. (b).
 Cal. Civ. Code § 3333.2, subd. (c)(2).
 Lopez v. Ledesma (Mar. 24, 2020) 2020 Cal. App. LEXIS 248, *3 (emphasis added).
In dissent, Justice Judith Ashmann-Gerst concluded the unsupervised physician assistants were not providing services within the scope of services for which they were licensed for MICRA analysis. Justice Ashmann-Gerst argues that the elimination of actual supervision should be rejected pursuant to Cal. Bus. & Prof. Code licensing requirements and the definition of “supervise,” acting autonomously is not within the services for which physician assistants are licensed, and unsupervised acts should not constitute “professional negligence” for MICRA. Lopez, 2020 Cal. App. LEXIS 248 at *24-37.
 Lopez, 2020 Cal. App. LEXIS 248 at *2-3.
 Lopez, 2020 Cal. App. LEXIS 248 at *3 (emphasis added).
 Lopez, 2020 Cal. App. LEXIS 248 at *11; American Bank & Trust Co. v. Community Hospital (1984) 36 Cal. 3d. 359, 363.
 Lopez, 2020 Cal. App. LEXIS 248 at *11; Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 158.
 Lopez, 2020 Cal. App. LEXIS 248 at *12; Fein, 38 Cal.3d at 163.
 Lopez, 2020 Cal. App. LEXIS 248 at *16 (citing Cal. Code Regs., tit. 16, § 1399.545, subd. (b) (“A supervising physician shall delegate to a physician assistant only those tasks and procedures consistent with the supervising physician's specialty or usual and customary practice and with the patient's health and condition”)). However, a physician assistant who practices without any relationship at all with a supervising physician would be practicing outside the scope of services for which the provider is licensed. Without such a relationship, the physician assistant would have no delegated tasks that he or she is authorized to perform. Lopez, 2020 Cal. App. LEXIS 248 at *17 (citing Cal. Code Regs., tit. 16, § 1399.540, subd. (a)).
 Lopez, 2020 Cal. App. LEXIS 248 at *18-20.
 Lopez, 2020 Cal. App. LEXIS 248 at *20-21; Waters v. Bourhis (1985) 40 Cal. 3d 424, 436; Prince v. Sutter Health Central (2008) 161 Cal. App. 4th 971, 9770978.
 Lopez, 2020 Cal. App. LEXIS 248 at *21-22.
 Lopez, 2020 Cal. App. LEXIS 248 at *22-23.
 Lopez, 2020 Cal. App. LEXIS 248 at *23-24 (emphasis added); Preferred Risk Mut. Ins. Co. v. Reiswig (1999) 21 Cal. 4th 208, 215.