Doctor, nurse accused of acting beyond the scope of their licenses

Surviving family of patient who died in augmentation mammoplasty sues doctor, his clinic

BY Bernise Carolino 06 May 2022

A clinic does not lose its status and protections as a health care provider simply because its employees performed the acts causing a patient’s death in a manner falling beyond the scope of their licenses, a California court recently ruled.

In Divino Plastic Surgery, Inc. et al. v. The Superior Court of San Diego County, a doctor performed an augmentation mammoplasty in his surgical clinic. The patient went into cardiopulmonary arrest during the surgery, remained intubated and unresponsive for about six weeks, then died.

In 2019, the patient’s surviving family members filed a complaint seeking damages from the clinic, the doctor, and the registered nurse who assisted during the surgery. The survivors alleged the following:

The doctor told the patient that a licensed anesthesiologist would be there during the procedure to administer the anesthesia and to monitor her;
The doctor and the nurse were the ones who actually administered multiple anesthetics despite lacking the license to do so;
They failed to monitor the patient during the procedure;
Although they performed cardiopulmonary resuscitation on the patient for around three hours without her consent, she never regained consciousness before her death.

In 2021, the survivors told the court that they wanted to amend their complaint by including a request for punitive damages and by adding certain factual allegations, including that the doctor misrepresented himself as a board-certified plastic surgeon and that the clinic hired an unlicensed medical assistant who administered local anesthesia to the patient.

The surviving family members made the following allegations:

The doctor and his clinic did not qualify as healthcare providers under s. 425.13 of the Code of Civil Procedure because they were not licensed to provide the services in the manner alleged;
The doctor, not being a licensed anesthesiologist, lacked the necessary training, skill, and experience to rescue the patient from an anesthesia overdose;
The nurse acted outside her scope of her license by administering anesthesia without the doctor’s supervision;
The medical assistant was not licensed or otherwise qualified to administer anesthesia.

The defendants argued that the motion was untimely since the survivors failed to file it at least nine months before the initial trial date in line with s. 425.13.

The trial court issued an order allowing the surviving family to amend their complaint to include a claim for punitive damages. The surgeon and his clinic asked the trial court to vacate this order.

The California Court of Appeal for the Fourth District, Division One ordered the trial court to vacate its order to the extent that it granted leave for the survivors to amend their complaint to add a claim for punitive damages.

The doctor and the clinic, through its employees, were acting as healthcare providers when it administered anesthesia and offered other services to the patient as part of the augmentation mammoplasty, the appellate court ruled. They did not lose their status as healthcare providers and the protections of s. 425.13 just because the way the doctor and the clinic’s employees performed the acts that caused the patient’s death allegedly fell outside the scope of the relevant licenses.

Under the Business and Professions Code, the doctor in this case, as a licensed physician and surgeon, was authorized to use drugs on patients to treat physical and mental conditions. A registered nurse could administer anesthetics and other drugs, as a physician has ordered, without the physician’s supervision. A medical assistant, on the other hand, could administer drugs and could perform other supportive services under a physician’s authorization and supervision. The medical assistant need not be licensed.

Learn more at Employment Law Masterclass California.