Davis v. Physician Assistant Board
Certified for Publication (2021)
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Rule of Law:
A physician assistant engages in the unlicensed practice of medicine when they perform medical services without adequate supervision, which occurs if the supervising physician is not qualified to delegate the specific medical services because it is not their specialty or usual practice, or if the physician assistant functions autonomously without meaningful oversight.
Facts:
- Rodney Eugene Davis, a physician assistant experienced in performing liposuction, became dissatisfied with his employment arrangement and decided to start his own practice, Pacific Liposculpture.
- To satisfy legal requirements, Davis partnered with Dario Moscoso and sought a supervising physician, intentionally looking for someone who would not be involved in the daily operations or procedures.
- They hired Dr. Jerrell Borup, an anesthesiologist who had been retired for 12 years following a stroke and had no prior surgical or liposuction experience, aside from a weekend training course he took after being hired.
- Dr. Borup agreed to be the 'Medical Director' for a percentage of the revenue, but his role was limited to occasionally reviewing charts; he never performed or directly supervised any procedures.
- Davis gave himself the title 'Director of Surgery' and performed all liposuction procedures at the practice himself, operating autonomously.
- The practice's website and informed consent forms contained misleading information that exaggerated Dr. Borup's expertise and role, leading patients to believe a qualified, experienced surgeon was supervising or performing the procedures.
- Patient S.M. developed a post-operative complication (a pseudobursa), which Davis failed to properly diagnose or treat, repeatedly telling her the condition was normal and would resolve on its own without consulting Dr. Borup or another physician.
- Multiple patients testified they were misled by the clinic's advertising and Davis's title, and would not have consented to the procedure had they known a physician assistant would be performing it without a qualified surgeon's oversight.
Procedural Posture:
- The Physician Assistant Board (the Board) filed an accusation against Rodney Eugene Davis, a licensed physician assistant.
- Following a hearing, an administrative law judge (ALJ) found that Davis engaged in the unlicensed practice of medicine, gross negligence, and other violations, and recommended the revocation of his license.
- The Board adopted the ALJ's findings and officially revoked Davis's physician assistant license.
- Davis filed a petition for a writ of administrative mandamus in the Superior Court of Sacramento County, seeking to have the Board's decision overturned.
- The superior court (trial court) denied the petition, upholding the Board's decision to revoke the license.
- Davis, as Plaintiff and Appellant, appealed the superior court's judgment to the Court of Appeal of the State of California, Third Appellate District, with the Physician Assistant Board as Defendant and Respondent.
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Issue:
Does a physician assistant engage in the unlicensed practice of medicine and other forms of unprofessional conduct justifying license revocation by performing surgical procedures under a formal supervision agreement with a physician who is unqualified in that specialty and provides no meaningful supervision, thereby allowing the physician assistant to function autonomously?
Opinions:
Majority - Murray, J.
Yes, a physician assistant engages in the unlicensed practice of medicine under these circumstances. The court affirmed the revocation of Davis's license, finding substantial evidence supported the Board's conclusions. The court reasoned that Davis's supervision was a sham, violating two key regulations. First, a physician may only delegate tasks consistent with their own 'specialty or usual and customary practice,' and Dr. Borup, a retired anesthesiologist with minimal training, was not qualified to delegate liposuction. Second, a supervising physician must ensure the physician assistant 'does not function autonomously,' yet Davis intentionally structured the practice to operate without any meaningful oversight from Dr. Borup. The court found Davis 'choreographed a medical practice that ensured he would not be properly supervised.' Furthermore, the court upheld findings of gross negligence for the improper post-operative care of patient S.M., repeated negligence for the misleading informed consent forms used with multiple patients, and false advertising for the deceptive website content and use of the title 'Director of Surgery.'
Analysis:
This decision clarifies that the legal requirement for physician supervision of a physician assistant is a matter of substance, not mere form. A formal delegation of services agreement is insufficient if the supervising physician lacks the requisite specialty experience or if the physician assistant operates autonomously. The case establishes that a physician assistant can be held directly responsible for creating a business structure designed to circumvent meaningful supervision, effectively engaging in the unlicensed practice ofmedicine. This precedent strengthens the authority of licensing boards to protect the public by looking past superficial compliance to the reality of a practice's operations, justifying severe discipline like license revocation for intentional schemes that deceive patients and violate the core principles of supervised practice.
