Lopez v. Ledesma ( 2022 )


Menu:
  •         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
    1
    LOPEZ v. LEDESMA
    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
    2
    LOPEZ v. LEDESMA
    Opinion of the Court by Liu, J.
    “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
    3
    LOPEZ v. LEDESMA
    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
    4
    LOPEZ v. LEDESMA
    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
    5
    LOPEZ v. LEDESMA
    Opinion of the Court by Liu, J.
    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
    6
    LOPEZ v. LEDESMA
    Opinion of the Court by Liu, J.
    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
    7
    LOPEZ v. LEDESMA
    Opinion of the Court by Liu, J.
    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,
    8
    LOPEZ v. LEDESMA
    Opinion of the Court by Liu, J.
    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
    9
    LOPEZ v. LEDESMA
    Opinion of the Court by Liu, J.
    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.)
    10
    LOPEZ v. LEDESMA
    Opinion of the Court by Liu, J.
    “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
    11
    LOPEZ v. LEDESMA
    Opinion of the Court by Liu, J.
    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.
    12
    LOPEZ v. LEDESMA
    Opinion of the Court by Liu, J.
    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
    13
    LOPEZ v. LEDESMA
    Opinion of the Court by Liu, J.
    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).)
    14
    LOPEZ v. LEDESMA
    Opinion of the Court by Liu, J.
    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.)
    15
    LOPEZ v. LEDESMA
    Opinion of the Court by Liu, J.
    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
    16
    LOPEZ v. LEDESMA
    Opinion of the Court by Liu, J.
    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
    17
    LOPEZ v. LEDESMA
    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
    18
    LOPEZ v. LEDESMA
    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
    19
    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
    20
    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
    21
    LOPEZ v. LEDESMA
    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