Plaintiff Rodney Eugene Davis, a physician assistant, learned to perform liposuction under the guidance of a physician. By his representations, he performed thousands of the procedures. At one point, Davis grew dissatisfied with the physician for whom he worked and their professional arrangement, so he decided to establish a new practice. To do so, Davis needed a physician to serve as his supervising physician. This was required
In 2015, the Physician Assistant Board (the Board)
On appeal, Davis asserts that the ALJ erred in finding that he committed the various acts alleged, and that the findings are not supported by substantial evidence. He further asserts that the discipline imposed—revocation of his license—constituted a manifest abuse of discretion.
FACTUAL AND PROCEDURAL BACKGROUND
In 2015, the Board filed its accusation against Davis, accusing him of the unlicensed practice of medicine, gross negligence, repeated negligent acts, false and/or misleading advertising, dishonesty and/or corruption, failure to maintain adequate and accurate medical records, and general unprofessional conduct.
Evidence Presented by the Board
Dario Moscoso met Davis when they both worked at Advanced Lipo where Dr. Kevin Calhoun was the physician owner. Davis performed liposuction procedures at Advanced Lipo every day, Monday through Saturday. Moscoso ran the administrative aspects of the office.
Calhoun never performed any of the liposuction procedures at that office, at least as far as Moscoso observed. Davis told Moscoso that Calhoun "was incapable of doing liposuction procedures. He did not have the knowledge and background and experience to do them. And [Davis] was doing all of the procedures himself, essentially, without Dr. Calhoun's experience and supervision."
Davis expressed unhappiness at working "for someone else that was making all the money." Davis was receiving a commission of 15 percent for each patient he treated. Moscoso testified that Davis felt that arrangement was unfair and was unhappy working under these conditions.
Davis and Moscoso decided to start their own company. Moscoso, as chief financial officer, would handle the administrative, accounting, and marketing side of the practice. Davis, as "director of surgery" and chief executive officer, would handle the clinical side. Moscoso and Davis agreed that Davis would receive 70 percent of the income and Moscoso would receive 30 percent. They discussed names for the company and Davis came up with the name Pacific Liposculpture, Inc.
Davis and Moscoso also discussed the need for a medical director. According to Moscoso, Davis "definitely didn't want to have a doctor that was going to be meddling in performing his procedures. He didn't want a doctor involved in the day-to-day procedures. He wanted to work autonomously and someone that would stay away ... from the office basically." Moscoso posted an advertisement and received seven or eight responses. Dr. Jerrell Borup was selected for an interview because he was retired and he "didn't have any background knowledge or experience with cosmetic surgery. He was not a trained surgeon. And therefore, he would not be involved in the OR with" Davis.
According to Moscoso, at the first interview, Borup told them that he was not interested in performing liposuction. Davis told Borup that "he was performing all the lipo procedures himself and that he didn't need any help in that regard. He didn't need anybody in the OR, and this would be more like
An e-mail referencing a training course for Borup that Davis sent to Moscoso sometime after the first interview read, in pertinent part: "I sent Dr. Borup some info this morning about the course but he didn't reply back. I hope that he will be able to stick with our system once has [sic] some knowledge.... I'm glad that we're making a contract that will allow for us to make immediate changes in that position if ever needed. We don't want another clumsy physician getting in the way." According to Moscoso, in referring to the "system," Davis was referring to the structure that had been discussed in the interview with Borup, whereby Borup would "stay away ... from the company and the daily operations."
At a second interview approximately two weeks later, they discussed the "structure" of the arrangement—"that [Borup] basically could be away from the office and should be away from the office, enjoying his retirement." Davis offered Borup the job of medical director. Moscoso testified that Davis selected Borup over another candidate they interviewed because Borup "did not want to get involved in the day-to-day operations of the company and [the other candidate] wanted to." Initially, everyone agreed Borup would receive 10 percent of the practice's gross revenues. However, before the practice issued its first check to Borup, the percentage was renegotiated to 5 percent. Davis felt 10 percent was too much to pay Borup "for not doing anything."
Pacific Liposculpture opened for business in September 2010.
Eventually, Davis took the responsibility for marketing away from Moscoso. Davis created Borup's biographical information for the website from Borup's resume, which appeared on the website under the heading, "`Meet Our Medical Director.'"
Dr. Jerrell Borup
Dr. Borup testified that he had been a licensed physician in California since 1983. He began his residency in anesthesiology in 1980, and he was board certified in anesthesiology. He published one article, in 1983. As Borup described it, his publication related to "the safety and efficacy of continuous spinal of anesthesia." Borup testified that he had not done a general surgical residency, but "did surgery during [his] internship for a month and a half." This internship took place in 1979 to 1980. When asked what type of surgeries he performed, he testified, "[m]ostly assisted in surgeries and made rounds and changed dressings and all the stuff—work that interns would do." Asked again what type of surgeries he performed as an intern, Borup testified: "You don't actually do the surgery. You just hold the things for the surgeon to do the same. You're just observing to help him keep things out of his way." Asked again whether he had performed any of the surgeries, Borup responded, "No, no. Just learning."
Borup held various anesthesiology positions between 1982 and 1998. In these positions, he did not perform surgeries, but he did observe many. He testified that he performed general anesthesia for "hundreds" of patients during liposuction surgeries between 1984 to 1998.
After practicing as an anesthesiologist for approximately 18 years, Borup suffered a stroke. As a result, he did not practice medicine for 12 years, between 1998 and 2010.
In 2010, Borup joined the American Academy of Anti-Aging Medicine. Asked to describe his experience in the antiaging field at the time he began at
Although prior to September 2010, he had not performed any liposuction procedures, Borup did testify that the "flip side of that, actually, is when I was—the whole time I was an anesthesiologist, I used to put catheters in people's backs and arterial lines and central lines. So the idea of liposculpture is feeling tissue planes and knowing what you're doing. So I had a pretty good feel for that." However, he then acknowledged that he did not perform a single procedure at Pacific Liposculpture. The full extent of Borup's personal surgery experience with liposuction was his two-day training session "and what [he] observed."
Borup testified he originally intended to perform procedures if he obtained a position at Pacific Liposculpture. However, once he saw what Davis did "and how many he'd done," things changed because Borup "could see how good [Davis] was."
Borup started as supervising physician of Pacific Liposculpture on September 20, 2010. He also supervised another physician assistant at another practice who was "doing cosmetic procedures" including Botox and fillers and lasers. He testified that he watched Davis perform "10, 15" procedures, "mostly at first."
Borup testified that the Medical Board investigated him for aiding and abetting the illegal practice of medicine by Davis. At some point, Borup received a notice from the Medical Board that the investigation had been
Patient L.W. received liposuction from Davis on April 14, 2011. He found Pacific Liposculpture online. When he spoke with an employee at Pacific Liposculpture, L.W. learned that Davis, who was the "director of surgery," would be performing the procedure. L.W. believed at that time that Davis was a doctor, although the employee on the phone did not specifically state that Davis was a doctor. L.W. assumed that a "director of surgery" would be a doctor.
L.W. arrived at Pacific Liposculpture on the day of his procedure, paid his outstanding balance, and was taken into another room. An assistant gave L.W. paperwork to fill out, including an informed consent form. Someone went over the form with L.W., and he felt he had sufficient time to complete the form. However, Davis did not discuss with L.W. alternative treatments, risk of infection, blood clots, asymmetries, pain, bleeding, poor wound healing, numbness, weight changes, or unhappiness with results, even though entries on the operative summary said he did.
At some point, L.W. said something like, "`Thanks, Doc,'" and Davis told L.W. that he was not a doctor, that he was "a physician assistant with extreme experience and over 10,000 procedures performed." The revelation "stopped [L.W.] in [his] tracks for a second, but [he] proceeded." He said he proceeded because he was "pretty much ... a train somewhat in motion already," and he felt comfortable with Davis's friendliness. Additionally, Davis told L.W. that "the facility was run and managed by a supervising doctor," a statement L.W. testified was important to going through with the procedure because Davis was not a doctor.
L.W. lay down on the table and he was given a local anesthetic by injection. Describing the procedure, L.W. testified: "what I recall was that it was very rough and very hurried. And he's kind of a big guy. And I was being moved about a lot and just—I was in pain. And I was just moaning and groaning. [¶] And at some point I was given more pain medication by injection, and the procedure went on. I—I'd say it might have been an hour and a half total. It was very grueling. [—] Afterwards, he pretty much got up
Patient C.N. learned about Pacific Liposculpture from an advertisement and then she visited the website. C.N. remembered seeing on the website that the medical director had "20 years' experience doing it." C.N. testified that, "what led me to call was that there was so many years' experience and that it would ... be done under local anesthesia. That was one of my concerns, to not be put under; and basically, that he was the chief of staff prior." The website left C.N. with the impression that Dr. Borup was knowledgeable in performing liposculpture.
An employee of Pacific Liposculpture told C.N. on the phone that the "individual who would be performing the surgery had extensive training in this procedure; that ... the individual was a teacher of this procedure, had actually taught the procedure," although the employee never identified the individual who would be performing the procedure. Based on the website, and the employee's representations, C.N. believed that the person who would be performing the procedure would be the person with 20 years of experience.
In October 2011, C.N. arrived at Pacific Liposculpture and filled out paperwork. Asked if she was given a consent form, C.N. responded: "I was. I think I was. I don't—I didn't have much time to go over what I was given." She estimated that 10 minutes passed between when she was given the form and when she "went back to have other stuff done." She did not feel she had adequate time to complete the informed consent form. And she did not read the entire document, although she did sign it. No one went over the contents of the form with her.
Someone took C.N. into a back room, weighed her, told her the doctor would be in, and exited the room. Davis then entered the room. C.N. testified that "he introduced himself as the director of surgery." Asked whether she knew at this time that Davis was a physician assistant, C.N. responded that she believed he told her "at that time" that he was "PA or physician assistant," she could not recall which. The fact that Davis indicated he was a physician assistant did not concern C.N. "because [she] thought this guy that had 20 years of training was going to be the one doing [her] surgery." She "was under the impression [Davis] was going to be assisting in the procedure or at least overlooked by Dr. Borup." And by the time she realized the doctor
C.N. was nervous about her tachycardia, and so before going into surgery, she asked Davis about that.
In the surgery room, Davis gave C.N. injections to numb the site and then made four incisions. Although C.N. had been told that the procedure would be painless, it was not. C.N. told Davis that it felt like something was wrong, that she was in pain, and that she "could feel everything he was doing." Davis told C.N. that he would administer more medication. C.N. felt pain for the duration of the procedure. On a scale of one to 10, C.N. characterized the pain she experienced as a nine. The procedure lasted approximately 45 minutes. No one else was ever in the surgery room with C.N. and Davis "until the very end."
C.N. called Pacific Liposculpture over the following days to report that she was experiencing a lot of pain, and that "something didn't feel right." Davis told C.N. that she was fine, that everything would be okay, and that she needed to calm down. Davis also told C.N. that she was "over-exaggerating."
At no point did Davis tell C.N. he would consult with a supervising physician or medical director. C.N. never met Dr. Borup.
Patient K.D. underwent liposuction at Pacific Liposculpture in March 2012. She had visited the Pacific Liposculpture website and "was very impressed. I liked that he had 20 years' experience; that he was the chief of staff, chief of anesthesia." Nothing about the website suggested to K.D. that anyone other than a doctor would perform the procedure. Similarly, in the telephone conversations she had with an employee at Pacific Liposculpture, K.D. was not told anything that would make her believe that anyone other than a doctor would perform the procedure.
When K.D. arrived at Pacific Liposculpture, she was given papers to fill out including an informed consent form. She had less than five minutes to complete the form, which she did not think was enough.
Davis came into the operating room, introduced himself by name, and told K.D. that he was going to give her a local anesthetic and begin the procedure. Davis did not state what his title was, and, at this point, K.D. believed that he was a doctor. Contrary to entries on the operative summary, Davis did not discuss with K.D. anything about blood clots, bleeding, infection, or any of the other risks mentioned in the summary.
K.D. experienced pain during the procedure. When Davis began working near where K.D. had scar tissue from a previous surgery, it hurt "a lot." K.D. told Davis, and he replied by saying he would administer more anesthetic, which he did "many times."
K.D. went back for a second procedure the following day. She still had no reason to believe that Davis was not a doctor. Once again, Davis did not discuss the potential risks and complications that appear on the operative summary.
K.D. was again taken into the operating room, Davis came in, and he started K.D.'s second procedure. K.D. experienced pain during the second procedure.
No one was present during either procedure other than K.D. and Davis. K.D. did not see a doctor during either procedure. Asked if she knew whether someone was supposed to supervise Davis's work, K.D. responded, "I thought he was the doctor." K.D. acknowledged that no one told her that Davis was a doctor, but she also testified that, at the relevant times, she thought Davis was Dr. Borup.
After K.D. went home following the second procedure, she contacted Pacific Liposculpture because she was experiencing pain which she characterized as an "eight or a nine." When K.D. notified Davis of the pain she was experiencing, he called her a "drug seeker." Davis told K.D. that "none of his other patients had any kind of pain afterwards and that he did not believe" her. Davis told K.D. to go see her doctor; he did not tell K.D. he had a supervising physician or suggest a consultation with that physician. K.D. discovered that Davis was not a physician approximately one month after her procedures. Asked whether or not she would have gone through with either procedure had she known Davis was not a doctor, K.D. answered, "Absolutely not." When asked why not, she stated, "Because he's not a doctor and he's not a surgeon."
Patient S.M. had liposuction at Pacific Liposculpture in April 2013. S.M. was familiar with Pacific Liposculpture because she was seeing an aesthetician who rented space in the same office. She was also familiar with Davis, having seen him around the office. On at least one occasion, S.M. heard "girls in the office" refer to Davis as "Dr. Rod." S.M. believed Davis was a doctor. S.M. researched Pacific Liposculpture on the website as well as on Facebook and Yelp. S.M. saw at least one reference to "Dr. Rod" on Yelp or Facebook.
Davis performed the procedure on S.M. on April 17, 2013. Upon her arrival at the office, S.M. was given the informed consent form. S.M. had about 10 minutes to review the form, which she did not feel was sufficient. S.M. signed the form even though she did not read it through.
S.M. testified that at the time of the procedure, she knew Davis's title was "director of surgery," but she did not know whether he was a doctor, a physician assistant, or something else.
Davis administered a medication in pill form, and then he began to numb S.M.'s thighs. As S.M. recalled, the numbing process hurt more than the actual procedure. She did not recall experiencing pain during the procedure. S.M. never met Dr. Borup.
Approximately five weeks after the procedure, a sack of fluid formed on S.M.'s right thigh. S.M. discussed the development with Davis at a followup appointment. Davis told S.M. that the condition was normal, and that she had nothing to worry about. He told her that it would go away. He
S.M. went to her primary care physician, who had an ultrasound performed and then referred S.M. to Dr. Munish Batra. S.M. testified that Dr. Batra diagnosed the condition on her right thigh as a pseudobursa.
S.M. testified that Dr. Batra asked who performed the liposuction procedure, and she responded that "Dr. Rod Davis" performed the procedure. Dr. Batra had not heard of him. S.M. and Dr. Batra looked at Pacific Liposculpture's website, and Dr. Batra said, "`Oh, my god. You had a physician assistant do your liposuction,'" and explained that a physician assistant is not a doctor. As of the time of her testimony, S.M. had not had the cosmetic repairs performed because she could not afford to pay for the procedure.
S.M. testified that she found Davis's title—"director of surgery"—to be "extremely misleading." S.M. did not realize that, in California, someone could have that title when the person is not even a surgeon. She explained, "To me, any initials after his name—PA, I didn't know what that meant. But director of surgery sounds like somebody who's a doctor and somebody who's performing surgeries on people."
Dr. Munish Batra
Dr. Batra is board certified in plastic surgery and reconstructive surgery. He testified that "[m]ost of [his] practice is esthetic surgery, breast and body work." Although he did not testify at Davis's hearing, Dr. Batra gave a deposition and wrote a report, both of which were received into evidence. It was his complaint that started the investigation underlying the instant allegations against Davis.
Dr. Batra examined S.M. on September 11, 2013. In his report, under the heading "Physical Examination," he wrote: "Examination today reveals the patient has obvious pseudobursal cyst on the leg. The patient was told that this would require an excision with a resulting scar." (Capitalization and boldface omitted, italics added.) He testified that the pseudobursae had been "completely misdiagnosed" by Davis.
Regarding S.M.'s pseudobursae, Dr. Batra testified, "it looks like hell." He explained, "you can get a pseudobursae even in cases where liposuction's done appropriately. But you should be able to recognize that this is a pseudobursae and treat it." He further explained, a pseudobursae "should be treated right away" and if it is not, surgery is required. The cost for surgery would have been $11,500, but S.M.'s insurance did not cover it.
Dr. Batra testified that when he first saw S.M., she said she thought Davis was a doctor and knew him as Doctor Rod. Because Batra had not heard of a Dr. Davis, he and S.M. looked him up on the Internet and noted that the website said Davis was a physician assistant, not a physician. Thereafter, he called Pacific Liposculpture, spoke briefly with Davis, and told Davis to have his supervisor contact him. Borup returned the call and Batra admonished him about letting a physician assistant do liposuction procedures "[u]nless you have a plastic surgeon who is experienced in liposuction...."
The Board's Expert—Dr. Michael Sundine
Dr. Michael Sundine, who had been practicing medicine since 1987, testified as the Board's expert.
Sundine opined that, as a physician assistant, Davis was not competent or qualified to perform liposuction surgery. During the course of his plastic surgery residency, Sundine never learned of a situation where a physician assistant performed liposuction surgery without supervision. He testified that Davis violated the applicable standard of care during the relevant time periods by performing liposuction surgery.
Sundine testified that it was his opinion that Davis violated the applicable standard of care by using the title "director of surgery." Asked whether it was standard in the medical community for a physician assistant to identify as a director of surgery or chief of surgery, Sundine testified: "I've never heard any of it at any of the hospitals that I've been at." Sundine testified that a director of surgery should be, at the least, a medical doctor and typically skilled in the field of surgery. He opined it was misleading for a physician assistant to identify as a director of surgery because "it tries to bestow credentials that I don't think they will have." A physician assistant using that title implies he or she has more experience and education than he or she actually has.
Sundine testified that Davis also violated the applicable standard of care regarding "appropriate and adequate informed consent" in his use of the informed consent forms. One version of the informed consent form used by Pacific Liposculpture stated: "I hereby authorize Dr. Jerrell Borup, MD, Rod Davis, PA, and such assistants as may be selected to perform the procedure or treatment." Sundine testified that, on the forms, "there's this kind of hint that Dr. Borup ... really is the person who's doing it or supervising it or is directly there. I think it's very misleading." Describing another way in which he believed Davis violated the duty of care regarding informed consent, Sundine testified: "informed consent's a process, and it's a process that takes a long time. You know, it really includes a really thorough discussion of the risks and complications of the procedures. [¶] And from reading some of the complaints, it's—it seems like these patients was [sic] asked to sign a form and whisked back to surgery. And it doesn't seem—and I believe that they actually said that they really didn't have a lot of time prior to the procedure, the surgery. [¶] And in that regard, I think that probably that the informed
Sundine reviewed the case file of a patient who developed a seroma.
Evidence Presented by Davis
Davis testified that he attended a physical therapy graduate program at Touro College on Long Island. He was in the master's program for one year, and then transferred to the physician assistant program, upon completion of which he received "another bachelor of science degree." After obtaining his degree, Davis in 2002 took a board certification exam, after which he worked in an orthopedic surgery clinic in Brooklyn. While working there, Davis was also "moonlighting" at the emergency room at Good Samaritan Hospital. After about a year, Davis began working with another orthopedic surgeon group. He continued to work in the emergency room as well for another two years. With the new orthopedic group, Davis worked in the operating room assisting with surgeries.
Once Davis's license was in place, Dr. Bittner became his supervising physician. On cross-examination, Davis acknowledged that Bittner was not a plastic surgeon, but rather was an "interventional radiologist" "trained to do minor surgical procedures...." He learned how to do liposuction from Dr. Bittner, working at Bittner's office from October 2007 to September 2008. Davis estimated he performed "several thousand" procedures while he was employed there.
Eventually, Davis decided to look for another job performing liposuction. He began working for Dr. Calhoun in April 2009, and performed liposuction procedures by himself out of both of Calhoun's San Diego offices. He estimated that he saw three or four patients each day.
Moscoso was the office manager at Calhoun's office. Davis and Moscoso complained to each other about Calhoun. At some point, one of Davis's paychecks bounced, and Davis had a heated discussion with Calhoun. After that, Moscoso, who had witnessed the argument, pulled Davis aside and told him that Davis was the one doing all the work and that there were other physicians who would be happy to have Davis. Moscoso asked Davis if he wanted him to look into the possibility, and Davis agreed. Davis left Calhoun's office in August 2010.
Davis and Moscoso decided to establish a management services organization (MSO). Eventually, Pacific Liposculpture in La Jolla was up and
Davis and Borup entered into a delegation of services agreement, which included certain protocols and by which Borup authorized Davis to perform specified services, including the administration of local anesthesia and sedation and liposuction procedures.
Davis testified on cross-examination that Borup's "specialty" was liposuction surgery, although Davis conceded it "was a new specialty for him...." The relevant training and experience on which Davis relied in concluding that liposuction surgery was Borup's specialty consisted of the weekend course Borup took and having performed two procedures as part of the course.
Asked if he wanted Dr. Borup to be involved in performing liposuction on patients, Davis responded: "I preferred to be the primary provider of lipo."
With regard to his informed consent forms, Davis testified that he essentially just copied what had been used in Dr. Calhoun's practice. He also testified he discussed the common risks with all patients.
Davis provided the employees at Pacific Liposculpture with a list of common questions and prepared responses to help them address patient questions. The first question among these was, "Who does the procedure?" The prepared response was: "Rod Davis is our Director of Surgery and he performs all of our procedures. He is nationally certified and specializes in liposculpture. He has performed over 10,000 procedures, more than most physicians. Our office has a perfect safety record, not even an infection, and we have never experienced a serious complication. Rod is licensed in both California and New York. [¶] Dr. Jerrell Borup is the Medical Director and has been a board certified physician for 25 years." (Underscoring & boldface omitted, italics added.)
Davis testified that, at some point, he learned the Medical Board or the Physician Assistant "committee" was investigating the possible illegal practice of medicine at Pacific Liposculpture. He eventually received a one- or
With regard to patient S.M., Davis testified that she appeared for a followup visit on May 1, 2013. He gave her a smaller-size compression garment than what she had. He did not attempt to drain the swelling because it "was still firm to palpation. When I pushed on the area, it was not that fluid wave that you would like before you stick a needle into the area." Davis had dealt with seromas in the past, and he felt sufficiently comfortable and knowledgeable to deal with S.M.'s swelling. He did not feel that he needed Dr. Borup's assistance. Davis testified that, contrary to S.M.'s testimony, she came to the office on June 25, 2013. He still opted not to drain the swelling because "it was still firm." He believed that S.M. had either a dissolving seroma or possibly swelling resulting from a compression garment that was too tight. He instructed S.M. to remove the compression garment and increase massage in the area. At some point, he advised S.M. to get a second opinion.
Davis's Expert—Dr. Terry J. Dubrow
Dr. Terry J. Dubrow, a board certified plastic surgeon, testified on behalf of Davis. Dubrow disagreed with Sundine's conclusion that Davis was not competent to perform the liposuction procedures detailed in his reports. Dubrow testified: Davis "does nothing but liposuction and does a tremendous amount of it. And although I don't see all of the complications he's had, if these are representative of his complications, they are extraordinarily minor. [¶] And in fact, three of these patients don't have any complications, in my opinion."
Dubrow opined that it was reasonable for Davis to have the title "director of surgery." Based on what Davis did day to day, Dubrow thought it was not misleading for Davis to hold the title "director of surgery." Asked whether the title could potentially lead people to think Davis was a doctor, Dubrow testified "not necessarily," but "it could." Dubrow testified that seven to eight years prior, the director of surgery at University of California, Irvine was a nurse. He was also aware of nonphysicians at other unspecified facilities in California who were listed as director of surgery, all of whom were nurses.
Asked if it was reasonable for Davis, a physician assistant, to do liposuction procedures under Dr. Borup, Dubrow responded: "Yes. Provided that
With regard to patient S.M., Dubrow testified that the only way to appropriately diagnose a pseudobursa is to aspirate to see whether the fluid returns to the area. Dubrow "couldn't figure out why when [Dr. Batra] made a diagnosis of a fluid collection that he didn't immediately put a needle in it and ascertain whether it was blood or serous fluid and start treating."
On cross-examination, Dubrow acknowledged that, if a practitioner did not discuss potential risks of a procedure with patients, did not present educational videos about those risks, and the patients did not have sufficient time to review the informed consent form which outlined the risks, this would constitute a breach of the standard of care.
The Board's Decision
The Board submitted its decision and order dated May 13, 2016, to be effective June 10, 2016, adopting the proposed decision of the ALJ, revoking
With regard to discipline, the ALJ concluded: "[u]nder the totality of the circumstances presented, the public would not be protected if [Davis] were to retain his license. Careful thought and deliberation was given to alternate disciplinary measures; however, the cumulative nature of [Davis's] conduct, his intentional scheme to circumvent the rules and regulations governing physician assistants, and consideration of the overriding concern for public safety require this result. Revocation is the only appropriate measure of discipline that will protect the public."
Proceedings in the Trial Court
Davis filed a petition for a writ of administrative mandamus seeking, inter alia, a writ compelling the Board to set aside its decision.
In a tentative ruling, the trial court ruled that each of the ALJ's and the Board's determinations were supported by the weight of the evidence. The court also rejected Davis's contention that revocation of his license was excessive and unduly punitive and constituted a manifest abuse of discretion. The trial court concluded: "The factual findings cited to support the level of discipline imposed are supported by the weight of the evidence. The Court finds that reasonable minds could differ over the appropriateness of the penalty imposed premised upon those findings. Therefore, Davis has not shown a manifest abuse of discretion by [the Board] in revoking his license."
In an order filed February 24, 2017, the trial court affirmed its tentative ruling, denying Davis's petition for a writ of administrative mandamus and damages. A judgment entered the same day in favor of the Board denied the petition.
I. Standard of Review
"A writ of administrative mandate is available `for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal....'" (Kifle-Thompson v. State Bd. of Chiropractic Examiners (2012) 208 Cal.App.4th 518, 523 [145 Cal.Rptr.3d 627] (Kifle-Thompson), quoting Code Civ. Proc., § 1094.5, subd. (a).) "Under Code of Civil Procedure section 1094.5 judicial review of a final administrative decision `shall extend to the questions whether the respondent [agency] has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent [agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.'" (Fisher v. State Personnel Bd. (2018) 25 Cal.App.5th 1, 13 [235 Cal.Rptr.3d 382], quoting Code Civ. Proc., § 1094.5, subd. (b).)
"When it is claimed the findings are not supported by the evidence, and the trial court, as here, is authorized by law to exercise its independent judgment on the evidence, `abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.' [Citation.] In such a case our review on appeal is limited. We will sustain the trial court's findings if they are supported by substantial evidence. [Citations.] In reviewing the evidence, we `resolve all conflicts in favor of the party prevailing in the superior court and must give that party the benefit of every reasonable inference in support of the judgment.'" (Kifle-Thompson, supra,
Where the trial court essentially rejects the petitioner's contention that the administrative agency's findings were not supported by the evidence, and, in doing so, effectively adopts the administrative agency's findings, it is the administrative agency's findings we must examine to determine whether they are supported by substantial evidence. (Kifle-Thompson, supra, 208 Cal.App.4th at p. 524.)
II. Physician Assistants
The Legislature established a statutory scheme for physician assistants out of "concern with the growing shortage and geographic maldistribution of health care services in California...." (§ 3500.) The legislative purposes of this statutory scheme include: "to encourage the effective utilization of the skills of physicians and surgeons, and physicians and surgeons and podiatrists practicing in the same medical group practice, by enabling them to work with qualified physician assistants to provide quality care"; "to encourage the coordinated care between physician assistants, physicians and surgeons, podiatrists, and other qualified health care providers practicing in the same medical group, and to provide health care services"; and "to allow for innovative development of programs for the education, training, and utilization of physician assistants." (Ibid.)
A person may not practice as a physician assistant unless licensed. (§ 3503.) To become licensed, a physician assistant must complete an approved program and pass a written examination administered by the Board. (§§ 3517, 3519.) According to the version of former section 3502 effective at the time Davis worked with each of the patients here with the exception of S.M.,
A physician assistant renders services under the supervision of a licensed physician under a practice agreement that meets certain requirements, also referred to as a delegation of services agreement (DSA). (§§ 3502, subd. (a)(1), (2), 3502.3, 3501, subd. (k).) "[A] physician assistant acts as an agent for [the supervising] physician...." (Cal. Code Regs., tit. 16, § 1399.541.) A physician assistant may "[p]erform surgical procedures without the personal presence of the supervising physician which are customarily performed under local anesthesia." (Id., subd. (i)(1).)
A "supervising physician" was defined, at all times relevant here, to mean "a physician and surgeon licensed by the [board] or by the Osteopathic Medical Board of California who supervises one or more physician assistants, who possesses a current valid license to practice medicine, and who is not currently on disciplinary probation for improper use of a physician assistant." (§ 3501, former subds. (a)(5), (e).)
There is a dearth of decisional law related to physician assistants and consequently, we apply the case law related to other licensed professions where appropriate here.
III. Unlicensed Practice of Medicine
A. Additional Background
The findings of the ALJ, which the trial court concluded supported the determination that Davis engaged in the unlicensed practice of medicine, included the following: "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] hired Dr. Borup, who may have been well-intentioned, but lacked recent medical experience and was trying to return to medicine after suffering a debilitating stroke that left him unable to practice for 12 years. [Davis] determined, even before the DSA was signed, that Dr. Borup would never perform a liposuction at Pacific Liposculpture. Dr. Borup's entire experience performing liposuction was obtained at a weekend course he attended after he signed the DSA, during which he participated in two liposuctions. He never performed another liposuction.... [¶] ... After his initial observations, Dr. Borup had no involvement in Pacific Liposculpture other than coming by the office occasionally to review a stack of medical records and to pick up his check.... [¶] Dr. Borup did not see patients, did not consult with patients, did not perform any administrative duties, and did not participate in Pacific Liposculpture's business.... [¶] ... Dr. Borup allowed [Davis] to operate autonomously and without proper supervision. Although the DSA and other business related agreements complied, on their faces, with the statutes and regulations governing physician assistants and supervising physicians, in practice, the agreements were ignored.... Dr. Borup did not appear to be deceitful or coy in his testimony, and it is found that his testimony was sincere; however, there were several times when he was confused and uncertain. Dr. Borup had little ... idea of what was going on at Pacific Liposculpture. [¶] ... The evidence demonstrated by clear and convincing proof that Dr. Borup allowed [Davis] to operate autonomously in violation of California Code of Regulations, title 16, section 1399.545, subdivision (f). [¶] ... The evidence [also] demonstrated by clear and convincing proof that liposuction surgery was not consistent with Dr. Borup's specialty or his usual and customary practice. He improperly delegated
B. Davis's Contentions
Davis asserts that the ALJ's findings, upon which the Board and the trial court relied, that he engaged in the unlicensed practice of medicine are not supported by substantial evidence. He also asserts that the "evidence shows there was never any intent or act of [him] practicing medicine without a license." He emphasizes that he did not hold himself out as a physician, he had a DSA with Borup, he had consulted an experienced, published lawyer in the field, he sought guidance from the Board, and he received approval from his probation monitor. Davis asserts that Borup had sufficient knowledge and ability to serve as supervising physician, and he acted in compliance with all of his supervisory requirements.
Section 2052 provides in pertinent part: "(a) ... any person who practices or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person, without having at the time of so doing a valid, unrevoked, or unsuspended certificate as provided in this chapter or without being authorized to perform the act pursuant to a certificate obtained in accordance with some other provision of law is guilty of a public offense.... [¶] (b) Any person who conspires with or aids or abets another to commit any act described in subdivision (a) is guilty of a public offense.... [¶] (c) The remedy provided in this section shall not preclude any other remedy provided by law."
1. Improper Delegation
As noted, California Code of Regulations, title 16, section 1399.545, subdivision (b), provides: "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." (Italics added.)
Borup had been a licensed physician in California since 1983. But he was board certified in anesthesiology and never did a general surgical residency. While he testified he "did surgery during [his] internship for a month and a half," he also testified that an intern in this capacity does not actually perform surgery. "You just hold the things for the surgeon to do the same. You're just observing to help him keep things out of his way." Borup never actually performed any surgery during his internship. He held various anesthesiology positions between 1982 and 1998, in which he did not perform surgeries, although he did observe many. Borup had a stroke after practicing as an anesthesiologist for approximately 18 years and did not practice medicine for 12 years, between 1998 and 2010.
At the time of his first interview at Pacific Liposculpture in 2010, Borup had "approximately two months' experience in the anti-aging field," which consisted of attending classes and meetings. After the interview, Borup attended a program on liposuction in September 2010. The program "was about a week of video and didactic. And then at the end—it was a weekend—two days of hands-on." Borup performed two procedures during the weekend course under the observation of a "teacher." He did not describe the nature of the procedures he performed. Nor did he discuss the background
Dr. Sundine, the Board's expert, opined that Borup did not meet the minimum qualifications for performing liposuction surgery. Borup's specialty was not liposuction; nor was it Borup's usual and customary practice. Indeed, as Sundine noted, Borup "never really practiced it. He took a short course to do it, with—having no surgical training. And then from my review of the record ..., he had only done one or two cases...."
As the Board points out, Davis's expert, Dr. Dubrow, acknowledged that it was "hard for [him] to call a specialist in liposuction someone who just learned how to do liposuction." He further testified that it was hard to say that liposuction was someone's usual and customary practice if the person had just learned liposuction.
Davis testified on cross-examination that Borup's specialty was liposuction surgery, but that it "was a new specialty for him...." He acknowledged the relevant training and experience on which he relied in concluding that liposuction surgery was Borup's specialty was the single course Borup took and the two procedures he performed in a weekend class.
We conclude the ALJ's determination that Dr. Borup was not competent to delegate the relevant tasks and procedures to Davis is supported by substantial evidence. Borup was a career anesthesiologist who, following a 12-year hiatus from the practice of medicine, decided to explore antiaging medicine, attended some classes, and performed two unspecified procedures under the supervision of a "teacher." Substantial evidence supports the ALJ's determination that liposuction surgery did not constitute Borup's specialty or usual and customary practice. Because 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" (Cal. Code Regs., tit. 16, § 1399.545, subd. (b), italics added), and because the ALJ's determination that liposuction surgery was not Borup's specialty or usual and customary practice was supported by substantial evidence, the ALJ did not err as a matter of law in concluding that Borup "improperly delegated medical tasks and procedures to" Davis.
2. Functioning Autonomously
As noted, California Code of Regulations, title 16, section 1399.545, subdivision (f), provides: "The supervising physician has continuing responsibility to follow the progress of the patient and to make sure that the physician
According to Moscoso, during the first interview, Borup indicated that he was not interested in performing liposuction. Also according to Moscoso, Davis told Borup that "he was performing all the lipo procedures himself and that he didn't need any help in that regard. He didn't need anybody in the OR, and this would be more like a [sic] off-site type of supervisory experience." After the interview, Davis was happy, calling the prospective situation "perfect"—"someone that is not going to be involved with the company, with the day-to-day procedures." In an e-mail to Moscoso, Davis stated, "`I hope that [Borup] will be able to stick with our system once has [sic] some knowledge.'" By this, according to Moscoso, Davis was referring to the structure that had been discussed in the interview with Borup, whereby Borup would "stay away ... from the company and the daily operations." Davis also stated in the e-mail, "`We don't want another clumsy physician getting in the way.'"
Davis maintains that the "clumsy physician" e-mail was misrepresented by the Board as suggesting that Davis wanted autonomy in his practice. Davis asserts that this passage was "taken out of context." According to Davis, the "clumsy physician" remark was a reference to Dr. Calhoun, for whom he had previously worked, and Davis's desire to avoid at Pacific Liposculpture the problems that arose at Dr. Calhoun's office, including Calhoun's lack of experience performing liposculpture, Calhoun's difficultly converting consultations into procedures, and his poor staff management skills. While the ALJ did not rely on the e-mail in the evaluation and analysis portion of the decision pertaining to the unlicensed practice of medicine, the ALJ did discuss the e-mail in another portion of the decision, concluding that the e-mail demonstrated Davis's desire to operate Pacific Liposculpture "without interference from anyone, particularly a physician." We conclude that it could be reasonably inferred from the e-mail that Davis desired and intended to function autonomously at Pacific Liposculpture, free from any interference in the form of "another clumsy physician getting in the way."
In addition, the evidence established that the business arrangement Davis engineered was designed to facilitate autonomous functioning. As Sundine opined, Pacific Liposculpture "was set up so that [Davis] absolutely did function autonomously." At a second interview approximately two weeks after the first, Davis and Borup discussed the "structure" of the arrangement, "that [Borup] basically could be away from the office and should be away from the office, enjoying his retirement." Ultimately, Davis selected Borup as
Davis acknowledged that he "preferred to be the primary provider of lipo." When he was asked if he made this clear to Borup, Davis replied: "We had a couple of discussions about it. And the way that I phrased it was, `I want to get things 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.'" He testified that there was "always this promise floating in the air that one day after [Davis] got some of these procedures under [his belt] and we had a good reputation going that we would then start to do more stuff together." However, Davis noted that patients would be coming into the practice having seen photographs of results achieved by him, not Dr. Borup. Therefore, according to Davis, "it seemed more straightforward to just have the person whose work is displayed on the site" perform the procedures. Davis further testified he thought they could "avoid more problems by making sure we stayed consistent with that versus having Dr. Borup ... practicing on people just for the sake of practicing and maybe ending up with some 19-year-old woman who's very upset with some results because she looked at photos and thought that she was going to get something similar to what was in the photos rather than a doctor who was ... just practicing just to practice." Davis was concerned that Dr. Borup was not as skilled when it came to the artistic aspect of the liposuction procedures. "He could do a procedure safely.... But making sure that everything looked smooth and the patient's happy, that's—I thought I would be better at that part." On cross-examination, Davis admitted that he did not want Borup performing any procedures.
The scripted answer Davis prepared for employees with which to respond when clients or potential clients asked who performed the procedures at Pacific Liposculpture is additional evidence establishing that he was functioning autonomously. It read, in part: "Rod Davis is our Director of Surgery and he performs all of our procedures." (Boldface omitted, italics added.)
The ALJ's findings that Davis set out to create a practice where he could operate without the interference of a physician, that Davis determined that Dr. Borup would not perform liposuction at Pacific Liposculpture, that Dr. Borup's involvement in the practice was extremely limited, and that Dr. Borup allowed Davis to operate autonomously with no meaningful
3. Davis's Additional Contentions Regarding the Unlicensed Practice of Medicine Allegation
a. Intent To Practice Without a License
Davis asserts that the "evidence shows there was never any intent or act of [Davis] practicing medicine without a license." (Italics added.) Davis has not shown that a finding of intent to violate the law was required to impose discipline.
The Board relies on Khan v. Medical Board (1993) 12 Cal.App.4th 1834 [16 Cal.Rptr.2d 385] (Khan) for the premise that it was not required to prove intent. At issue in Khan was, among other things, section 2264, which provides: "The employing, directly or indirectly, the aiding, or the abetting of any unlicensed person or any suspended, revoked, or unlicensed practitioner to engage in the practice of medicine or any other mode of treating the sick or afflicted which requires a license to practice constitutes unprofessional conduct." The Khan court noted that section does not contain qualifying words such as "knowingly" or "intentionally." (Khan, at pp. 1844-1845.) The court concluded: "[t]he Legislature's failure to include `knowingly' or `intentionally' or other qualifying words signals that it did not intend either guilty knowledge or intent to be elements of the unprofessional conduct of violating section 2264 by employing an unlicensed person." (Khan, at p. 1845.) The court also concluded that reading an intent element into the statute "would not further the Legislative purpose of public protection." (Ibid.) Thus, the court held that "section 2264 does not require a showing of either knowledge or intent on the part of the practitioner." (Khan, at p. 1845.) Section 2052, at issue here addressing the unlicensed practice of medicine, likewise does not contain qualifying words such as "knowingly" or "intentionally." (§ 2052, subd. (a).) Further, like section 2264, section 2052 serves the purpose of protecting the public. We conclude that it, too, does not require a showing of knowledge or intent. (Khan, at pp. 1844-1845; see also Sternberg v. California
Moreover, even if intent was an element, we would conclude that the existence of such intent was supported by the evidence here. Davis was not a licensed physician. He performed procedures which, if performed by a layperson, would constitute the unlicensed practice of medicine. (See generally § 2052, subd. (a).) Central to this case, of course, is Borup's purported supervision of Davis. We have concluded that Borup lacked the authority to delegate the liposculpture procedures to Davis because they were not consistent with Borup's specialty or usual and customary practice. (Cal. Code Regs., tit. 16, § 1399.545, subd. (b).) Davis was fully apprised of Borup's background and experience. We have also concluded that substantial evidence supports the determination that Davis functioned autonomously in violation of California Code of Regulations, title 16, section 1399.545, subdivision (f). We further conclude that substantial evidence, summarized in parts III.C.1. and III.C.2. of the Discussion, ante, supports the determination that Davis intended to perform these procedures knowing they were not consistent with Borup's specialty or usual and customary practice, and that Davis intended to operate autonomously. Indeed, substantial evidence supports the conclusion that this was Davis's very aim in the establishment and operation of Pacific Liposculpture. His contention that there was no showing that he had the intent to practice medicine without a license is meritless.
b. Supervising Physician's Duties and Davis's Responsibility
According to Davis, the duties relied on by the ALJ and the trial court are the supervising physician's duties, not the physician assistant's duties, and it was Dr. Borup's responsibility to satisfy these duties, not Davis's. Davis asserts that, in finding that he engaged in the unlawful practice of medicine, the trial court improperly placed the burden of ensuring Borup's compliance with his duties on Davis.
As noted, at the relevant times, section 3502 provided that a physician assistant "may perform those medical services as set forth by the regulations of the board when the services are rendered under the supervision of a licensed physician and surgeon who is not subject to a disciplinary condition imposed by the board prohibiting that supervision or prohibiting the
c. Compliance with Statutory File-review Requirement
Davis repeatedly relies on the fact that Borup purportedly reviewed a higher percentage of the medical files than he was required to by law. Prior to the 2019 amendment to section 3502, effective January 1, 2020, and at all times relevant here, subdivision (c)(2) of that section provided: "The supervising physician and surgeon shall use one or more of the following mechanisms to ensure adequate supervision of the physician assistant functioning under the protocols: [¶] ... The supervising physician and surgeon shall review, countersign, and date a sample consisting of, at a minimum, 5 percent of the medical records of patients treated by the physician assistant functioning under the protocols within 30 days of the date of treatment by the physician assistant." (§ 3502, former subd. (c)(2); see also Cal. Code Regs., tit. 16, § 1399.545, subd. (e)(3).)
The ALJ rejected Davis's argument that "Borup went above and beyond his obligation to review five percent of the medical records he was required to review in his capacity as a supervising physician, and that Dr. Borup actually reviewed ninety[
d. Reliance on Handbook and Legal Consultation
Davis argues that he consulted the California Physician Assistant's and Supervising Physician's Legal Handbook and the attorney author R. Michael Scarano, Jr., who had been General Counsel to the California Academy of Physician Assistants.
Specifically, Davis asserts he relied on the following passage: "Increasingly, enterprising PAs are seeking and assuming management roles in the medical practices in which they work. For example, a PA will often be the instigator of a plan to open a practice in a rural or urban underserved area, and will enlist the assistance of a partially retired physician.... Once the practice is up and running, the PA may need to serve as both the primary on-site practitioner and the practice administrator, with the physician perform[ing] [the] clinical obligations of an SP [supervising physician] through electronic communication and periodic visits to the practice." In his appellate briefing, Davis also relies on the following passage: "the practice may be owned by a semi-retired physician who wants the PA to assume most of the administrative and patient care duties on a day-to-day basis." Both passages are from the chapter titled, "The PA's Potential Role in Practice Ownership and Management."
However, as the Board points out, the handbook also includes the following from the chapter titled, "PA Scope of Practice and Supervision Requirements": "PA's are `dependent practitioners.' This means that their authority to practice derives from a delegation of authority from a supervising physician. Absent such delegation, a PA has no legal authority to perform medical services and is technically engaged in the unlawful practice of medicine." Of course, both passages Davis relies upon necessarily assume the referenced physician qualifies as a supervising physician who could give a valid delegation of authority. Borup did not, and the evidence shows Davis knew it.
In any event, in a case on which the Board relies, Norman v. Department of Real Estate (1979) 93 Cal.App.3d 768 [155 Cal.Rptr. 715], the court held that
e. Equitable Estoppel
Davis asserts that, because Dr. Borup was approved by Davis's probation monitor, the Board should be estopped from finding that Borup was not qualified to be Davis's supervising physician and that Davis engaged in the unlicensed practice of medicine.
"`"Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury."'" (Honeywell v. Workers' Comp. Appeals Bd. (2005) 35 Cal.4th 24, 37 [24 Cal.Rptr.3d 179, 105 P.3d 544] (Honeywell).)
Davis testified that, as a condition for his initial California probationary license, he was required to obtain preauthorization of his supervising physician. His probation monitor was Dennis Rodriguez. With regard to Davis's employment with Dr. Bittner, he testified that Rodriguez came to Bittner's office and met with both Davis and Bittner. According to Davis, he and/or Bittner made clear to Rodriguez that Davis would be performing liposuction procedures on patients. Eventually, they received approval from Rodriguez.
Davis subsequently got approval from Rodriguez when Davis went to work for Dr. Calhoun. Rodriguez came to the office and met with both Davis and Dr. Calhoun. Davis testified they submitted to Rodriguez their DSA, Dr. Calhoun's license number, and "a few other forms." Asked if he made it clear to
Davis testified that when Dr. Borup became his supervising physician, he was still in probationary status and Rodriguez was still his monitor. In this instance, Davis did not have an in-person meeting with Rodriguez. Davis testified: "I believe he said it was because there was only a couple of months left in probation, and things had been going fine with the probation. There had been no violations thus far. And he could just check it out from his end with Dr. Borup. As long as I sent in the same paperwork, he would check it out and get back to me if he's approved or not." Davis testified he could not recall whether he sent Borup's CV to Rodriguez, but he did send the first DSA he and Dr. Borup adopted as well as "the other supervisory forms." Davis testified that he was approved to work with Dr. Borup as his supervising physician. Davis did not call Rodriguez to testify on his behalf.
The elements for the imposition of equitable estoppel are not established on this record. Regarding the first element, we cannot say here that the party to be estopped, the Board, was apprised of the true state of facts based on the representations made by Davis to Rodriguez. The evidence does not establish the particulars or what Davis told Rodriguez and the record does not contain copies of all of the documents Davis provided concerning the arrangement with Dr. Borup. While it is conceivable that Rodriguez and the Board could be charged with knowledge concerning the extent of Borup's qualifications and his resulting inability to properly delegate authority to Davis, the evidence does not establish as much. And in any event, the Board could not be charged with knowing the extent to which Davis intended to and did operate autonomously. Davis cannot seek to impose an estoppel against the Board without establishing that relevant and truthful information was communicated to Rodriguez and the Board so the Board would be apprised of the relevant facts. As to the third element, Davis could not be said to be ignorant of the true state of facts. He knew what the true facts were. Thus, at least two of the four elements required for the imposition of equitable estoppel are not present here. (Honeywell, supra, 35 Cal.4th at p. 37.)
In any event, equitable estoppel "ordinarily will not apply against a governmental body except in unusual instances when necessary to avoid grave injustice and when the result will not defeat a strong public policy." (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 793 [72 Cal.Rptr.2d 624, 952 P.2d 641].) Here, we have concluded that substantial evidence supports the conclusion that Davis engaged in the unlicensed practice of medicine because his purported supervising physician could not
Thus, we disagree with Davis that the Board should be estopped from finding Borup not qualified to be Davis's supervising physician, and that Davis engaged in the unlicensed practice of medicine, based on the prior approval of Borup by Davis's probation monitor.
f. Reliance on Closure of Prior Investigation
Davis also relies on the fact that the Medical Board closed a prior investigation into Borup's alleged aiding and abetting Davis's illegal practice of medicine. Davis asserts that he understood this as approval of "his practice under Dr. Borup." To the extent that Davis implies an equitable estoppel argument, in this regard, the argument is without merit for the reasons stated in part III.C.3.e. of the Discussion, ante. Furthermore, the full record, including all allegations, findings, and conclusions, of the prior investigation are not in the record. Thus, the conduct and disposition of the prior complaint and investigation into Borup's alleged aiding and abetting Davis in the illegal practice of medicine is not dispositive of the matters here.
4. Conclusion—Unlawful Practice of Medicine
We conclude that substantial evidence supported the ALJ's determination that Davis performed procedures Borup was incompetent to delegate in violation of California Code of Regulations, title 16, section 1399.545, subdivision (b), and that Davis functioned autonomously in violation of California Code of Regulations, title 16, section 1399.545, subdivision (f). Therefore, substantial evidence supported the ALJ's determination that Davis engaged in the unlicensed practice of medicine, and the ALJ did not err as a matter of law in reaching this conclusion.
IV. Gross Negligence—Patient S.M.
A. Additional Background
In finding that Davis was grossly negligent in his care and treatment of S.M., the ALJ stated: "Clear and convincing evidence established that [Davis] engaged in an extreme departure from the standard of care and that he committed gross negligence in his post-operative care and treatment of patient SM. Dr. Sundine opined that [Davis] should have aspirated the patient's lump and referred her to Dr. Borup, and that his failure to do so was an extreme departure from the standard of care. Although Dr. Dubrow disputed that SM had a pseudo bursa and agreed with [Davis's] initial recommended post-operative care, Dr. Dubrow did not examine SM. Additionally, he conceded that SM's lump should have been drained if it had not resolved itself after a period of time. Dr. Batra, a plastic surgeon and SM's subsequent treating physician, examined SM, and concluded that she had a pseudo bursa that should have been aspirated. Based on the totality of the evidence, Dr. Sundine's opinion was more persuasive than Dr. Dubrow's on this issue. [Davis] was grossly negligent in his care and treatment of patient SM."
B. Davis's Contentions
Davis asserts the finding that he committed gross negligence in his postoperative treatment of S.M. is not supported by substantial evidence. Davis asserts he "did not consult with Dr. Borup with respect to S.M., because [he] thought he was competent to address the lump" on his own. He further asserts his conservative treatment of S.M., which was endorsed by Dr. Dubrow, was appropriate. Davis also emphasizes that, ultimately, he did refer S.M. to a physician three months after the procedure.
Gross negligence is "`the want of even scant care or an extreme departure from the ordinary standard of conduct.'" (Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 138 [181 Cal.Rptr. 732, 642 P.2d 792], italics added; accord, City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754 [62 Cal.Rptr.3d 527, 161 P.3d 1095].) "The use of the disjunctive in the definition indicates alternative elements of gross negligence —both need not be present before gross negligence will be found." (Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1053 [236 Cal.Rptr. 526] (Kearl).)
S.M. testified that approximately five weeks after her procedure, a sack of fluid formed on her right thigh. She discussed the development with Davis at
Dr. Sundine, the Board's expert, concluded that, while Davis's initial management of S.M.'s seroma was appropriate, as the matter persisted, Davis should have been more aggressive. He testified that beyond "a couple weeks ... you want to start thinking that you might need to do something else." According to Sundine, when more aggressive treatment was called for, a physician's assistant should have brought the matter to the attention of a supervising physician, and Davis's failure to do so violated the applicable standard of care. In his report, Sundine found it "amazing" that Davis "did not recognize the seroma which could have been easily diagnosed with an ultrasound or something as simple as a needle aspiration." Sundine stated: "By failing to treat the seroma early the patient will now require excision of the pseudo-bursa as proposed by Dr. Batra...." Sundine characterized Davis's performance in this regard as an "[e]xtreme departure."
For his part, Davis testified that he had dealt with seromas in the past, and he felt sufficiently comfortable and knowledgeable to deal with S.M.'s condition. He did not feel he needed Dr. Borup's assistance. Davis's notes indicate he recommended, in a text message, that S.M. go for a second opinion.
Resolving all conflicts in favor of the Board and giving the Board the benefit of every reasonable inference in support of the judgment as we are required to do under the substantial evidence test (Kifle-Thompson, supra, 208 Cal.App.4th at p. 523), we conclude that substantial evidence supports the ALJ's determination that Davis acted with gross negligence in his postoperative care of S.M. Sundine, the Board's expert, considered Davis's postoperative care of S.M. to be an "extreme departure." The testimony of a qualified expert witness found to be credible by the Board, the ALJ, and the trial court may alone "provide substantial evidence to support a finding of gross negligence." (Kearl, supra, 189 Cal.App.3d at p. 1053.) Any conflict between Sundine's testimony and that of Davis and his expert, Dr. Dubrow, "must be resolved in favor of the judgment." (Ibid.)
We conclude that substantial evidence supports the ALJ's determination that Davis's postoperative care of S.M. constituted gross negligence.
V. False and/or Misleading Advertising
A. Additional Background
In finding that Davis engaged in false and/or misleading advertising, the ALJ stated: "Pacific Liposculpture advertised its services on the internet. At various times, the advertisements contained false and misleading statements, particularly as related to Dr. Borup and the `experienced team' of professionals who performed liposuctions. [Davis] admitted the falsity of some of the
B. Davis's Contentions
Davis asserts the finding that he engaged in false and/or misleading advertising is not supported by substantial evidence. He asserts the advertising was "substantially accurate and was created without intent to mislead the public." He also contends that he advised his staff not to address him as "doctor," corrected patients who erroneously addressed him as doctor, and never represented that he was a doctor. Davis further contends that use of the title "Director of Surgery" did not imply that he was a physician, and that the title was appropriate because he was the person performing the surgery and overseeing the management of the surgical suite. He asserts that the informed consent forms were amended to be clearer about who would perform the procedures. Davis also asserts that he attempted in good faith to monitor the Pacific Liposculpture Yelp page to correct consumer posts referring to him as "doctor," and further asserts that any failure to speedily correct third party comments on Yelp is not a proper ground for discipline.
In this context, a "false, fraudulent, misleading, or deceptive statement, claim, or image includes a statement or claim that does any of the following": "Contains a misrepresentation of fact"; "[i]s likely to mislead or deceive because of a failure to disclose material facts"; "[i]s intended or is likely to create false or unjustified expectations of favorable results"; "[c]ontains other representations or implications that in reasonable probability will cause an ordinarily prudent person to misunderstand or be deceived"; and/or "[i]ncludes any statement, endorsement, or testimonial that is likely to mislead or deceive because of a failure to disclose material facts." (§ 651, subd. (b)(1), (2), (3)(A), (5), (8); see also § 17500.)
Moscoso testified that, once the company was established, Davis took responsibility for marketing Pacific Liposculpture away from him. From
We have previously noted the biographical information for Borup on the Pacific Liposculpture website. (See fn. 4, ante.) Versions of that information contained a number of statements relevant here.
The website stated: "Dr. Borup, along with his highly trained liposculpture team, will help to minimize your risks while offering you the best possible care all under local anesthesia!" (Italics added.) Neither Dr. Borup nor members of any "highly trained liposculpture team" other than Davis could be said to have done anything to minimize risks while offering the best possible care.
The website also stated: "Dr. Borup supervises a team of highly trained liposuctionists with a combined experienced [sic] of well over 10,000 lipo procedures." (Italics added.) As pertinent here, Webster's Dictionary defines the word "team" to mean: "a number of persons associated together in work or activity: such as [¶] a: a group on one side (as in football or a debate) [¶] b: crew, gang." (Merriam-Webster Dict. Online (2021) <https://www.merriam-webster.com/dictionary/team> [as of July 2, 2021], archived at <https://perma.cc/AFJ6-HWTW>, capitalization omitted.) Yet, only one person—Davis—was involved in the liposuction procedures. There was no "team" of "highly trained liposuctionists." Moreover, the evidence established that Borup did not meaningfully supervise Davis at all.
The website stated: "Because of Dr. Borup's advanced training and expertise in liposuction technology, PacificLipo's procedures significantly reduce pain, swelling and bruising, while providing you with smoother results, tighter skin, permanent improvements, and no unsightly scars." (Italics added.) However, Borup did not have "advanced training and expertise in liposuction technology." Moreover, even if one could consider Borup to have such advanced training and expertise in liposuction technology, because he was not involved in the procedures or their supervision, there was no cause and effect between Borup's purported "advanced training and expertise in liposuction technology" and the reduction in pain, swelling, and bruising, and "smoother results, tighter skin, permanent improvements, and no unsightly scars."
The website stated: Borup was "highly published." Yet, he had published but one article. That publication was in 1983, appears to have been coauthored with two other individuals and had nothing to do with liposuction.
Regarding the use of the title, "director of surgery," Dr. Sundine opined that Davis violated the applicable standard of care by using that title. Sundine had never heard of a physician assistant identifying himself or herself as director of surgery or chief of surgery "at any of the hospitals that I've been at." Sundine testified that a director of surgery should be, at the least, a medical doctor. Sundine testified that he believed it was misleading for a physician assistant to identify as a director of surgery because "it tries to bestow credentials that I don't think they will have." Although Davis's expert, Dubrow, testified he knew of situations where nonphysicians had the title director of surgery, he did not testify that any had been physician assistants or advertised their title for purposes of marketing their practices. And Dubrow acknowledged that the title could be misleading.
Sundine testified that Davis also violated the applicable standard of care in his use of the informed consent forms. Informed consent forms used by Pacific Liposculpture included the following authorization: "I hereby authorize Dr. Jerrell Borup, MD, Rod Davis, PA, and such assistants as may be selected to perform the procedure or treatment." This statement reads as if Dr. Borup and Davis, and possibly selected assistants, would perform the patient's liposuction procedure. A later version stated: "I hereby authorize Dr. Jerrell Borup, MD, OR Rod Davis, PA and such qualified assistants as may be selected to perform the procedure or treatment." Sundine testified that, on the forms, "there's this kind of hint that Dr. Borup ... really is the person who's doing it or supervising it or is directly there. I think it's very misleading." The evidence established, and Davis acknowledged, that Davis had no intention of Borup performing any procedures, and thus any indication that Borup was or might be the one performing any given procedure or that he might be performing the procedure with Davis was disingenuous and misleading.
Asked whether any particular representations on the website were relevant in making her decision to submit to treatment at Pacific Liposculpture, C.N. identified the language indicating that Dr. Borup "had 20 years' experience," which indicated to her that "he had, you know, lot of years of experience and that he was chief of staff formerly." The website left C.N. with the impression that Dr. Borup was knowledgeable in performing liposculpture.
K.D. testified that nothing about the website suggested to her that anyone other than a doctor would perform her liposculpture procedure.
S.M. testified that she found Davis's title—"director of surgery"—to be "extremely misleading." S.M. did not realize that, in California, someone could have that title when the person is not a surgeon.
Based on all of the foregoing, we conclude that substantial evidence supports the conclusion that these statements and representations constituted "misrepresentation[s] of fact," were "likely to mislead or deceive because of a failure to disclose material facts," contained "other representations or implications that in reasonable probability will cause an ordinarily prudent person to misunderstand or be deceived," and/or included "any statement, endorsement, or testimonial that is likely to mislead or deceive because of a failure to disclose material facts." (§ 651, subd. (b)(1), (2), (5), (8); see also § 17500.)
We are unpersuaded by Davis's contention that the advertising was "substantially accurate and was created without intent to mislead the public." First, Davis has not identified any "substantial accuracy" defense to a false advertising allegation where numerous statements are indeed false and misleading. Nor are we aware of any such defense. Second, even if intent is a required element, substantial evidence supports a finding of such intent. The statements were clearly and obviously false and/or misleading. Davis had control of the website and informed consent forms, he knew the true circumstances of the practice, and from the totality of the circumstances, it can be readily inferred that he intentionally made the statements false and misleading. Davis knew Borup would not perform liposuction procedures and nonetheless created advertising and informed consent forms that strongly suggested Borup's active involvement in the procedures and that Borup had significant expertise in liposuction. Moscoso testified that Davis wanted to "downplay" the fact that Borup was not a plastic surgeon. The frequently asked questions script Davis gave to his employees further sheds light on Davis's intent. In response to the question who would perform the procedure, Davis instructed employees to answer: "Rod Davis is our Director of Surgery and he performs all of our procedures. He is nationally certified and specializes in liposculpture. He has performed over 10,000 procedures, more than most physicians.... Rod is licensed in both California and New York." (Boldface omitted, italics added.) Davis did not tell his employees to explain he is a certified physician assistant or that the California and New York licenses referred to were for a physician assistant. And, in our view, the reference to "more than most physicians," in context was likely to be understood that Davis was a doctor who had done more liposculpture than other doctors.
We conclude that substantial evidence supports the ALJ's conclusion that Davis disseminated false and misleading advertising.
VI. Repeated Acts of Negligence
A. Additional Background
The ALJ concluded: Davis "engaged in repeated negligent acts in his care and treatment of LW, CN, KD and SM. [Davis] used consent forms for each patient that were misleading and did not adequately inform the patients who would be performing their surgeries. [Davis's] false and misleading advertisement and the confusing use of the title Director of Surgery caused patients to reasonably believe a medical doctor would have some involvement in their procedures. Each of these constituted departures from the standard of care. In addition, [Davis's] post-operative care of SM constitutes additional repeated negligence. Clear and convincing evidence established that [Davis] engaged in repeated negligent acts."
B. Davis's Contentions
Davis asserts that substantial evidence does not support the ALJ's finding that he engaged in repeated acts of negligence. He asserts the findings that the informed consent forms were misleading and his allegedly misleading use of the title "Director of Surgery" do not constitute negligent care and treatment. He maintains the language of the informed consent forms was not misleading. According to Davis, S.M. was the only patient whose actual treatment was found to have fallen below the standard of care. Thus, Davis asserts that there was no evidence of negligent care of anyone other than S.M., and thus there was no repeated negligence to support the ALJ's findings.
Section 2234, subdivision (c) identifies as unprofessional conduct "repeated negligence acts." To constitute repeated acts of negligence, "there must be two or more negligent acts or omissions. An initial negligent act or omission followed by a separate and distinct departure from the applicable standard of care shall constitute repeated negligent acts." (§ 2234, subd. (c), italics added.)
We concluded in part IV. of the Discussion, ante, that Davis committed gross negligence in his postoperative care of S.M. Thus, only one additional act of negligence is required to support a finding of repeated acts of negligence.
As discussed in part V. of the Discussion, ante, substantial evidence supports the ALJ's conclusion that Davis's informed consent forms were misleading with regard to who would perform the liposuction procedures. As Davis acknowledges, C.N., K.D., and L.W., signed the earlier version, while S.M. signed the later version. The earlier version signed by the other three patients stated: "I hereby authorize Dr. Jerrell Borup, MD, Rod Davis, PA, and such assistants as may be selected to perform the procedure or treatment." As we have noted, this form misleads the patient to believe that Dr. Borup and Davis, and possibly selected assistants, would participate in the liposuction procedure. Dr. Sundine, testified that "there's this kind of hint that Dr. Borup ... really is the person who's doing it or supervising it or is directly there. I think it's very misleading." Sundine testified that Davis violated the applicable standard of care regarding informed consent in his use of these informed consent forms. We agree.
The manifest purpose of the informed consent forms is to obtain the patient's informed consent. Failure to obtain informed consent is a form of professional negligence. (Cobbs v. Grant (1972) 8 Cal.3d 229, 240-241 [104 Cal.Rptr. 505, 502 P.2d 1] (Cobbs); Borman v. Brown (2021) 59 Cal.App.5th
"It is the physician's duty `"to disclose to the patient all material information to enable the patient to make an informed decision regarding the proposed operation or treatment. [¶] Material information is information which the physician knows or should know would be regarded as significant by a reasonable person in the patient's position when deciding to accept or reject a recommended medical procedure...."'" (Quintanilla v. Dunkelman (2005) 133 Cal.App.4th 95, 115 [34 Cal.Rptr.3d 557], quoting Arato v. Avedon (1993) 5 Cal.4th 1172, 1188, fn. 9 [23 Cal.Rptr.2d 131, 858 P.2d 598].)
We note here that section 2234, subdivision (c), does not limit repeated "acts" of negligence to the actual diagnosis or treatment of patients and does not require injury or harm. (See Kearl, supra, 189 Cal.App.3d at p. 1053 [§ 2234 does not limit gross negligence or unprofessional conduct to the actual treatment of a patient; nor does it require injury or harm to the patient before action may be taken against the physician or surgeon].) Moreover, our high court has recognized that informed consent is not necessarily limited to disclosing the risks of and alternatives to medical procedures.
In Moore, supra, 51 Cal.3d 120, the court addressed the question of whether a physician's failure to disclose preexisting research and economic interests related to a medical procedure performed on the plaintiff stated a cause of action for negligence based on an informed consent theory. (Id. at pp. 124-125.) There, a doctor recommended removal of the plaintiff's spleen. (Id. at p. 126.) Before the operation, the doctor formed the intent and made arrangements to obtain portions of the spleen for medical research of plaintiff's blood cells unrelated to the plaintiff's care. (Ibid.) The plaintiff was not informed of the plan to conduct this research nor was his permission requested. (Ibid.) Subsequently, at the doctor's direction, the plaintiff made
Citing Cobb, the Moore court stated that for a patient's consent to treatment to be effective, it must be informed consent and "in soliciting the patient's consent, a physician has a fiduciary duty to disclose all information material to the patient's decision." (Moore, supra, 51 Cal.3d at p. 129, citing Cobbs, supra, 8 Cal.3d at pp. 242, 246.) The court reasoned: "To be sure, questions about the validity of a patient's consent to a procedure typically arise when the patient alleges that the physician failed to disclose medical risks, as in malpractice cases, and not when the patient alleges that the physician had a personal interest, as in this case. The concept of informed consent, however, is broad enough to encompass the latter. `The scope of the physician's communication to the patient ... must be measured by the patient's need, and that need is whatever information is material to the decision.'" (Id. at p. 129, italics added.)
We see the concept of informed consent as being broad enough to include information about whether the person who is going to perform a patient's surgery is a doctor or not. Clearly identifying the practitioner who would perform surgery, making clear whether the person performing the procedure is a physician assistant and not a doctor, and making clear whether or not a physician would be involved at all are matters relevant to informed consent. Such information "is something that a reasonable patient would want to know in deciding whether to consent to a proposed course of treatment. It is material to the patient's decision and, thus, a prerequisite to informed consent." (Moore, supra, 51 Cal.3d at p. 130, citing Cobbs, supra, 8 Cal.3d at p. 245.) The failure to adequately make these disclosures here cannot be characterized as "a mere technical lapse such as `failing to dot or cross all the "i's" or "t's".'" (Kearl, supra, 189 Cal.App.3d at p. 1054.)
At oral argument, counsel for Davis asserted that the patients knew Davis was not a doctor before their surgery. To the contrary, the evidence establishes that at least one of the patients who received the original consent form did not know that. Moreover, that patient and another who received the same form were never told the person who would be performing their surgery was not a doctor.
As for C.N., she testified that she knew Davis was a "PA or physician assistant," before her surgery. But this did not concern her because she thought the "guy that had 20 years of training was going to be the one doing [her] surgery," and she thought Davis would be "assisting in the procedure or at least overlooked by Dr. Borup." This belief was reasonable given the wording of the original consent form, which suggested Borup and Davis, and possibly selected assistants, would participate in the patient's procedure. C.N. testified that by the time she realized the doctor was not going to attend, she "was already getting cut open in the surgery room."
We conclude that the foregoing constitutes substantial evidence supporting the ALJ's and the Board's findings of repeated acts of negligence.
VII. Dishonesty and Unprofessional Conduct
A. Additional Background
The ALJ stated: "[c]lear and convincing evidence established that [Davis] was dishonest by his false and misleading advertising." The ALJ further stated: "Pursuant to the findings of facts and discussions above, [Davis] engaged in acts that constituted engaging in the [un]lawful practice of medicine, gross negligence, repeated negligent acts, and disseminating false and misleading advertising. Clear and convincing evidence established that
B. Davis's Contentions
Davis asserts that the Board erred as a matter of law in finding that he engaged in dishonesty and general unprofessional conduct. He asserts these findings were based on the allegations that he engaged in the unlicensed practice of medicine, committed gross negligence, committed repeated acts of negligence, and disseminated false and misleading advertising, which, he asserts as set forth ante, are not supported by substantial evidence. Davis asserts that there are no findings here to support a claim of "`general unprofessional conduct.'" According to Davis, there "was no explanation in the Decision as to how any of [his] conduct amounted to general unprofessional conduct, or any analysis, other than the conclusory statement that it was based on `the findings and discussions above.'"
1. Applicable Statutes and Case Law
Section 3527, which is part of the Physician Assistant Practice Act (§ 3500.5), provides, in pertinent part: "[t]he board may order the ... suspension or revocation of, or the imposition of probationary conditions upon a PA license after a hearing as required in Section 3528 for unprofessional conduct that includes, but is not limited to, a violation of this chapter, a violation of the Medical Practice Act, or a violation of the regulations adopted by the board or the Medical Board of California." (§ 3527, subd. (a).)
Section 2234, which addresses unprofessional conduct, is also part of the Medical Practice Act (§ 2000), referred to in section 3527, subdivision (a). Among other things, section 2234 states that unprofessional conduct includes: "[v]iolating or attempting to violate, directly or indirectly, assisting in or abetting the violation of, or conspiring to violate any provision of this chapter," gross negligence, repeated negligent acts, and the "commission of any act involving dishonesty or corruption that is substantially related to the qualifications, functions, or duties of a physician and surgeon." (§ 2234, subds. (a)-(c), (e).)
"Unprofessional conduct is that conduct which breaches the rules or ethical code of a profession, or conduct which is unbecoming a member in
The governing board "may conclude that intentional dishonesty, even toward persons outside the practice of medicine, relates to the qualifications for practicing medicine and can be the basis for imposing discipline. [Citations.] As stated in [Griffiths v. Superior Court (2002) 96 Cal.App.4th 757 [117 Cal.Rptr.2d 445]], although a `physician who commits income tax fraud, solicits the subornation of perjury, or files false, fraudulent insurance claims has not practiced medicine incompetently[,] that physician has shown dishonesty, poor character, a lack of integrity, and an inability or unwillingness to follow the law, and thereby has demonstrated professional unfitness meriting license discipline.'" (Pirouzian v. Superior Court (2016) 1 Cal.App.5th 438, 448 [204 Cal.Rptr.3d 539] (Pirouzian).)
In part V.C. of the Discussion, ante, we concluded that substantial evidence supported the finding that Davis disseminated false and misleading advertising. For the same reasons, we conclude that substantial evidence supports a finding that Davis committed unprofessional conduct in the form of dishonesty. Furthermore, this dishonesty, in the form of intentionally false and misleading advertising soliciting business for the practice, was substantially related to the qualifications, functions, or duties of a physician, Borup, and a physician assistant, Davis. They were indeed more closely related than, for example, committing tax fraud, soliciting subornation of perjury, and filing false, fraudulent insurance claims as in Pirouzian, supra, 1 Cal.App.5th 438.
The ALJ's determination that Davis "was dishonest by his false and misleading advertising" is supported by substantial evidence, and, contrary to Davis's contention, the Board did not err as a matter of law in determining that he engaged in dishonesty.
3. Other Unprofessional Conduct
As stated ante, unprofessional conduct which may give rise to Board action including license revocation includes "[v]iolating or attempting to violate, directly or indirectly, assisting in or abetting the violation of, or conspiring to violate any provision of this chapter," gross negligence, repeated negligent acts, and the "commission of any act involving dishonesty or corruption that is substantially related to the qualifications, functions, or duties of a physician and surgeon." (§ 2234, subds. (a)-(c), (e).)
Section 2052, addressing the unlicensed practice of medicine, is a "provision of this chapter" within the meaning of section 2234, subdivision (a). We
We have also concluded that substantial evidence supports the determinations that Davis committed gross negligence and that he committed repeated negligent acts. (§ 2234, subds. (b), (c).)
We also conclude that substantial evidence supports the conclusion that the manner in which Davis established Pacific Liposculpture to facilitate his autonomous performance of liposuction procedures and avoid any meaningful supervision by a physician was conduct that was unbecoming of a physician assistant in good standing. (Shea, supra, 81 Cal.App.3d at p. 575.)
4. Conclusion—Unprofessional Conduct
Substantial evidence supports the conclusion that Davis engaged in unprofessional conduct looking at any of the aforementioned items individually, and when looking at his conduct in the aggregate.
VIII. The Discipline Imposed—Revocation of Davis's License
A. Additional Background
In contemplating the appropriate measure of discipline, the ALJ stated that the absence of prior discipline is an important mitigating circumstance, particularly where the professional has practiced for a substantial period of time. Additionally, a "professional's good faith is a matter to consider in determining whether discipline should be imposed for acts done through ignorance or mistake." The ALJ continued: "In this case, [Davis] has a history of discipline. His license was issued on a probationary basis because he failed to disclose a criminal conviction for being a `disorderly person' he received in 1992, when he was 18 years old. The prior discipline of [Davis's] license was based on conduct that was remote in time, and does not require enhanced discipline here. [¶] However, the allegations in this case, and the findings on those allegations, are extremely serious. [Davis] does not have a medical degree, yet he believed himself to be more experienced, trained, and skilled than a medical doctor. Although [Davis] may be skilled at performing liposuction surgeries, he is not a physician. [Davis] does not have the breadth of experience and knowledge gained by going through medical school courses, and successfully completing an internship and residency. [Davis] (and the public) were fortunate that [he] was not faced with a life threatening medical complication that could have presented during the procedures. [¶] Perhaps more disturbing, and certainly reflective of [Davis's] character and
B. Davis's Contentions
Davis asserts that the Board committed a manifest abuse of discretion in revoking his license. He argues there is no evidence that he lacks competence as a physician assistant or that any liposuction procedures were improperly performed. He contends that the revocation of his license was "a shocking, draconian result, apparently only for punitive purposes, and without reasonable support." He maintains that, with proper supervision, he poses no danger to the public. He further asserts that most of the Board's accusations were found unsupported by the evidence. And he asserts that revocation is improper because he acted in good faith.
C. Standard of Review—Discipline Imposed
"`The propriety of a sanction imposed by an administrative agency is a matter resting in the sound discretion of that agency, and that decision will not be overturned absent an abuse of discretion. [Citations.]' [Citation.] As to issues reviewed in the superior court under an abuse of discretion standard, `the appellate court reviews the administrative determination, not that of the superior court, by the same standard as was appropriate in the superior court. [Citations.]' [Citation.] [¶] Thus, when reviewing an issue regarding the level of discipline imposed, `the standard of review on appeal remains the same as it was in the superior court: the administrative agency's exercise of discretion as to the discipline to be imposed will not be disturbed unless a manifest abuse of discretion is shown. [Citation.]' [Citation.] "`Neither a trial court nor an appellate court is free to substitute its discretion for that of an administrative agency concerning the degree of punishment imposed." [Citations.]' [Citation.] `This rule is based on the rationale that "the courts should pay great deference to the expertise of the administrative agency in determining the appropriate penalty to be imposed." [Citation.]' [Citation.] [¶] `"One of the tests suggested for determining whether the administrative body acted within the area of its discretion is whether reasonable minds may differ as to the propriety of the penalty imposed. The fact that reasonable minds may differ will fortify the conclusion that there was no abuse of discretion."'" (Hanna v. Dental Bd. of California (2012) 212 Cal.App.4th 759, 764 [151 Cal.Rptr.3d 335], quoting Hughes v. Board of Architectural Examiners (1998) 68 Cal.App.4th 685, 692 [80 Cal.Rptr.2d 317] & Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494, 501 [210 Cal.Rptr. 788].) "[T]he agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order." (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515 [113 Cal.Rptr. 836, 522 P.2d 12] (Topanga).) "As stated by the United States Supreme Court, the `accepted ideal ... is that "the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained."'" (Id. at p. 516.)
We cannot conclude that the Board's determination was a manifest abuse of discretion. We have concluded that substantial evidence supports the findings that Davis engaged in the unlicensed practice of medicine, committed gross negligence in his postoperative care of S.M., committed repeated negligent acts, disseminated false and misleading advertising, and engaged in unprofessional conduct. These acts were not isolated or unrelated. Instead, most of them, with the exception of the postoperative care of S.M., were part
As emphasized by the ALJ, protection of the public by statute is the highest priority for the Board and "[w]henever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount." (§ 3504.1.) We conclude that the Board did not commit a manifest abuse of discretion in adopting the ALJ's determination that, "[u]nder the totality of the circumstances presented, the public would not be protected if [Davis] were to retain his license.... [T]he cumulative nature of [Davis's] conduct, his intentional scheme to circumvent the rules and regulations governing physician assistants, and consideration of the overriding concern for public safety require this result. Revocation is the only appropriate measure of discipline that will protect the public."
Davis asserts that the ALJ failed to adequately consider mitigating factors. He emphasizes: (1) the prior disciplinary investigation which was closed without any adverse findings, (2) that Dr. Borup was "approved" as his supervising physician by Davis's probation monitor, (3) that, following Borup's departure, he was properly supervised by a highly qualified physician up to the time of the hearing, and (4) that he made other changes responsive to the Board's desires.
The ALJ considered the remedial steps Davis took. However, the ALJ was not persuaded of the mitigating value of these steps, finding that Davis had not genuinely acknowledged the error of his ways, and was not remorseful or contrite. The ALJ also considered the issue that Davis was, at the time of the hearing, working under the supervision of a board certified plastic surgeon and was purportedly properly supervised, although the ALJ stated that the physician did not testify, and "no evidence was presented about the terms and conditions of [Davis's] current employment."
Davis relies on Magit v. Board of Medical Examiners (1961) 57 Cal.2d 74 [17 Cal.Rptr. 488, 366 P.2d 816] in asserting that revocation of a license is improper where the practitioner acted in good faith. However, the ALJ did not conclude that Davis acted in good faith. Thus, Magit, in which the trial court found, on sufficient evidence, that the practitioner "acted in the utmost good faith" (id. at p. 88), is not helpful to Davis here.
Davis also relies on Pirouzian, supra, 1 Cal.App.5th 438. In that case, the physician did "not dispute the ALJ's findings that he committed numerous acts of dishonesty ... with respect to his employment status and disability insurance benefits." (Id. at p. 447.) The Pirouzian court determined that revocation of the physician's license was not necessary to protect the public. (Id. at p. 448.) Among other things, the court noted, "Dr. Pirouzian's dishonest acts, while serious, were focused on his efforts to obtain disability insurance benefits and preserve the possibility of returning to work.... Significantly, there is no evidence that his dishonesty involved or affected the treatment or care of any patient, or the billing of clients." (Id. at p. 449.)
Davis relies on Topanga, supra, 11 Cal.3d 506, in asserting that there must be established a link between the "act and fitness or competence of the health care professional and the proposed disciplinary order the Board would impose." As indicated ante, there is such a link here. Here, the Board's decision was sufficient to "bridge the analytic gap between the raw evidence and ultimate decision or order," as it adopted the findings and legal conclusions made by the ALJ, which thoroughly described the evidence and the violations, and the rationale for the measure of discipline. (Id. at p. 515.)
We conclude that the Board did not commit a manifest abuse of discretion in choosing to revoke Davis's license.
The judgment is affirmed. The Board shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
Raye, P. J., and Duarte, J., concurred.
The Board filed a motion to strike footnote 8 from Davis's opening brief, which addressed Robbins's work at the practice, because it was based on evidence outside the administrative record. Decision on the motion was deferred pending the calendaring and assignment of the appeal. The representations in footnote 8 are not necessary to any of our determinations here, and we need not consider them. Thus, we need not grant the motion to strike, as we simply disregard information not part of the administrative record that is not necessary to our determinations. (Cf. City of Arcadia v. State Water Resources Control Bd. (2010) 191 Cal.App.4th 156, 180 [119 Cal.Rptr.3d 232] [court need not grant motion to strike portions of plaintiffs' brief on the ground that they constitute improper surreply where court can simply disregard the offending contentions].)