The California Court of Appeal has ruled that a physician assistant’s practice arrangement attenuated his required physician supervision so as to amount to the unauthorized practice of medicine.
Rodney Eugene Davis, a physician assistant, set up a liposuction business and met with an anesthesiologist, Jerrell Borup, MD, to provide the physician supervision of his activities required under California Business & Professions Code Section 3502. Dr. Borup practiced anesthesiology beginning in 1982 but stopped practicing medicine in 1998 after suffering a stroke. When Davis and Dr. Borup met in 2010, Dr. Borup had recently joined the American Academy of Anti-Aging Medicine and had attended approximately six weeks of didactic training meetings with the Anti-Aging Academy in Florida. After the meeting with Davis, Dr. Borup attended a liposculpture program consisting of a week of video and didactic instruction followed by a weekend consisting of two unnamed procedures under the observation of a “teacher.”
Davis hired Dr. Borup as the office’s “Medical Director” while Davis took the title “Director of Surgery.” The office opened in September 2010. In 2015, however, the California Physician Assistant Board filed an accusation against Davis accusing him of unlicensed practice of medicine, gross negligence, misleading advertising, and other charges.
During the Board proceedings, witness Dario Moscoso, the administrator and chief financial officer for the business set up by he and Davis, testified on meetings that he attended with Davis and Dr. Borup. At the first meeting, Moscoso testified that Dr. Borup said he was not interested in performing liposuction, to which Davis responded that he would be performing all the liposuction procedures himself and that Dr. Borup’s role would be an “off-site type of supervisory experience.” Moscoso testified that at a second meeting two weeks later, the three discussed the “structure” of the arrangement – “that [Dr. Borup] could be away from the office and should be away from the office enjoying his retirement.”
According to Moscoso’s testimony, Dr. Borup would come into the office once or twice a month. In his own testimony, Dr. Borup said he did not perform a single procedure at the business and that the full extent of his liposuction surgery experience was the weekend training session “and what [he] observed.”
In Davis’ testimony before the Board, he recounted that he learned how to do liposuction procedures while working at the office of an interventional radiologist and that he performed “several thousand procedures” under that physician’s supervision. Two years later, Davis performed liposuction procedures daily at a practice owned by another physician.
In his testimony before the Board on setting up a new business, Davis said he “preferred to be the primary provider of lipo.” Davis said that during the initial discussions regarding Dr. Borup doing procedures, he said, “’I want to get this off the ground. Let me get this going, of course, under your supervision. But I know that we need to have good photos on the website. We need to have good reviews.’”
Davis continued in his testimony that he was very confident he could get good results himself and that “it seemed more straightforward to just have the person whose work is displayed on the site” perform the procedures. “I think we can avoid more problems by making sure we stay consistent with that versus having Dr. Borup . . . practicing on people just for the sake of practicing . . . .”
In 2016, the Board adopted the proposed decision of its Administrative Law Judge revoking Davis’ physician assistant license after finding by “clear and convincing evidence” that Davis had engaged in the unlicensed practice of medicine. In finding that Davis practiced medicine without a license, the ALJ found: “Throughout the hearing [Davis] made it clear that he resented performing liposuction surgeries for doctors who he felt were less qualified than him, and who made their living from his work, skills and talents . . . [T]o have the control he wanted and get the pay he believed he deserved. [Davis] purposefully . . . set out to create a business arrangement that looked legitimate on paper, but allowed him to . . . run a liposuction business without the interference of a physician.”
Davis was unsuccessful in seeking a reversal of the Board’s decision by a Superior Court judge and on appeal asserted that he had no intent to practice medicine without a license, did not hold himself out as a physician, and had a delegation of services agreement with Dr. Borup, who he argued had sufficient knowledge and ability to serve as his supervising physician.
The Court of Appeal in Davis v. Physician Assistant Board began its analysis of the matter by emphasizing the terms in California Code of Regulations Section 1399.545(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.’” The appellate court said that substantial evidence supported the ALJ’s finding that Dr. Borup “improperly delegated medical tasks and procedures” to Davis.
The Court of Appeal continued its analysis by emphasizing that the relevant regulations also provide, “’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.’” Here, the Court focused on an email from Davis to Moscoso saying, “I hope that [Borup] will be able to stick with our system once has [sic] some knowledge.” Davis also wrote in the email: “We don’t want another clumsy physician getting in the way.” Though Davis argued that the passage referred to his past dissatisfaction with a physician on staff management issues, the Court of Appeal said that “it could be reasonably inferred from the email that Davis desired and intended to function autonomously at the business], free from any interference in the form of ‘another clumsy physician getting in the way.’”
On Davis’ contention that he did not have any “intent” on practicing medicine without a license, the Court of Appeal pointed out that statutory language addressing the aiding or abetting of an unlicensed person in the practice of medicine does not include words such as “knowingly” or “intentionally” and quoted with approval another court’s conclusion that “reading an intent element into the statute ‘would not further the legislative purpose of public protection.’”
Even so, the Court of Appeal concluded that the evidence supports the conclusion that operating autonomously “was Davis’ very aim” in the establishment of the liposuction business.
In upholding the Board’s finding that Davis practiced medicine without a license, the appellate court commented: “His contention that there was no showing that he had the intent to practice medicine without a license is meritless.”
California public records show that Dr. Borup’s medical license has been surrendered.
Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should be directed to GOwnby@CAPphysicians.com.