Unsupervised PAs subject to med-mal cap, state says
The California Supreme Court ruled late last month that even unsupervised physician assistants (PAs) are protected under the state’s $250,000 cap on noneconomic damages, according to a posting on the website of the Claims Journal, among other news sites.
The ruling stems from a 2013 suit filed by Marisol Lopez, who claimed that a dermatologist, a plastic surgeon, and two PAs had misdiagnosed her child’s skin cancer. Ms. Lopez’s child, Olivia Sarinana, died in February 2014, causing her mother to amend her original claim to a wrongful-death suit.
A trial court found both the doctors and the PAs liable for negligence, awarding the plaintiff $11,200 in economic damages and $4.25 million in noneconomic damages. The court subsequently reduced that amount, however, referencing the state’s $250,000 limit on noneconomic damages, which is part of the Medical Injury Compensation Reform Act of 1975, known as MICRA.
Ms. Lopez appealed the decision, arguing that the cap shouldn’t apply to the two PAs, because neither was under a physician’s direct supervision and therefore not acting within the proper scope of practice, as defined by state law. Despite agreeing with the factual basis of Ms. Lopez’s claim — that neither PA was being supervised during the period in question — the trial court refused to wave the state cap. Ms. Lopez again appealed, and, in a split decision, the Second District Court of Appeal upheld the trial court’s decision.
At this point, attorneys for Ms. Lopez applied for, and obtained, a review before the state’s highest court. Last month, the justices weighed in, ruling that the PAs were still entitled to protection under MICRA because they “had valid delegation-of-service agreements in place.” In other words, while the two PAs had not been directly supervised by a physician, their services had been properly delegated by one.
Said Associate Justice Goodwin Liu, who wrote the opinion: “To be sure, there are reasonable policy arguments for excluding physician assistants who perform medical services without actual supervision from a cap on non-economic 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.”
Despite the high-court ruling, voters may soon get a chance to amend the nearly 5-decades-old MICRA legislation. A November ballot initiative would not only adjust the cap for inflation, raising it to more than $1.2 million, but would also permit “judges and juries to waive the cap entirely for cases involving death and permanent disability.”
Medical groups have said that if either or both of these changes happen the cost of healthcare in the Golden State will surely go up.
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A version of this article first appeared on Medscape.com.