Marisol Lopez (Lopez) appeals from a portion of a judgment in her favor that reduced the damages she was awarded for the wrongful death of her daughter, Olivia Sarinanan (Olivia).
Olivia died from malignant melanoma when she was about four years old. Lopez prevailed in her negligence claims against three doctors and two physician assistants. The trial court awarded noneconomic damages of $4.25 million, but reduced those damages to $250,000 pursuant to Civil Code section 3333.2, subdivision (b).
Lopez argues that the reduction in damages was improper because the conduct of the two physician assistants who treated Olivia—Suzanne Freesemann and Brian Hughes—fell within a proviso excluding certain conduct from the statutory damages reduction.
Lopez relies on section 3333.2, subdivision (c)(2), which provides that noneconomic damages against a health care provider for negligent professional services is limited to $250,000 “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.”
Lopez argues that the negligence of the physician assistants is included within the scope of this proviso because the physician assistants acted without the supervision of a physician in violation of the governing statutes and regulations.
The California Court of Appeal rejected the argument and affirmed. Our Legislature has not given clear direction on how to apply section 3333.2, subdivision (c)(2) to physician assistants, whose situation is somewhat unique.
The 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 physician who supervises them. In this case, the physician assistants had a nominal, but legally enforceable, agency relationship with supervising physicians, but received little to no actual supervision from those physicians.
In the absence of any clear legislative statement on the issue, the California Court of Appeal concluded 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.
A contrary rule would make the damages reduction in section 3333.2 dependent on the adequacy of supervision. Such a rule would be uncertain and difficult to define, and would contravene the purpose of section 3333.2 to encourage predictability of damages to reduce insurance premiums.
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