Do physician assistants need a supervising physician in California? Can you, as a physician assistant, set up your own clinic without proper license? These are important questions that you need to accurately address when planning to open a private practice. Unlawful practice of medicine without a license has legal consequences you may not be prepared for.
We can all learn from physician assistant Rodney Davis who dared practice medicine relying solely on his experience from a previous job. Here’s the story…
Physician Assistant Supervision Agreement Between Rodney Davis and Dr. Jerrell Borup
Rodney Davis was found to have choreographed a medical practice that ensured he would not be properly supervised as a physician assistant. Clear and convincing evidence established that Davis engaged in the unlawful practice of medicine without a license.
Rodney Davis (hereafter “Davis”), a physician assistant, learned to perform liposuction under the guidance of a physician. He performed thousands of 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 assistant supervision, which means he needed to hire a physician to serve as his supervising physician.
Does a Physician Assistant Need a Supervising Physician? Yes, Hence, Dr. Jerrell Borup
Davis found a physician Dr. Jerrell Borup (hereafter “Physician”), who had been an anesthesiologist for 18 years and had not practiced medicine for 12 years. Before meeting Davis, Physician had never performed liposuction or other surgery. The Physician agreed to serve as “Medical Director,” although he would never perform a procedure at the new practice.
The Physician’s role, in practice, consisted of reviewing charts. Davis, who gave himself the title of “Director of Surgery,” would perform all the liposuction procedures. Davis opened his practice, Pacific Liposculpture, in September 2010.
Dario Moscoso (“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.
As far as Moscoso observed, Calhoun never performed liposuction procedures at that office. Davis told Moscoso that Calhoun “was incapable of doing liposuction procedures. He did not have the knowledge and background and experience to do them. Davis was doing all the procedures himself, essentially, without Dr. Calhoun’s experience and supervision.”
Davis expressed unhappiness at working “for someone else who was making all the money.” Davis received a commission of 15 percent for each patient he treated. Moscoso said that Davis felt that arrangement was unfair and was unhappy working under these conditions.
What Inspired Davis and Moscoso to Start Their Own Company?
Davis and Moscoso decided to start their own company. Moscoso, as the chief financial officer, would handle the administrative, accounting, and marketing side as “director of surgery” and chief executive officer, Davis 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 didn’t want to have a doctor that would be meddling in performing his procedures. He did not want a doctor involved in the day-to-day procedures. He wanted to work autonomously and be someone that would stay away from the office.
Moscoso posted an advertisement and received seven or eight responses. The Physician was selected for an interview because he was retired and did not have any background knowledge or experience with cosmetic surgery. He was not a trained surgeon. And therefore, he would not be involved in the operating room with Davis.
The First Interview
According to Moscoso, at the first interview, Physician told them he was not interested in performing liposuction. Davis told Physician that “he was performing all the lipo procedures himself and didn’t need any help. He didn’t need anybody in the OR. This would be more like an off-site type of physician assistant supervision. After the interview, Davis was happy. He said it was perfect. This is what we needed, someone that is not going to be involved with the company, with the day-to-day procedures.
An e-mail referencing a training course for the Physician that Davis sent to Moscoso sometime after the first interview read, in pertinent part: “I sent Dr. Physician some info this morning about the course, but he didn’t reply. Davis hoped that the Physician would be able to stick with their system once he had some knowledge. Davis was glad they were making a contract that would allow them to make immediate changes in that position if needed. Davis said he didn’t “…want another clumsy physician getting in the way.”
According to Moscoso, in referring to the “system,” Davis referred to the structure discussed in the interview with the Physician, whereby the Physician would “stay away from the company and the daily operations.”
The Second Interview
At a second interview approximately two weeks later, they discussed the arrangement that the Physician could be away from the office and should be away from the office, enjoying his retirement. Davis offered Physician the job of medical director. Moscoso said that Davis selected Physician over another candidate they interviewed because Physician “did not want to get involved in the day-to-day operations of the company and the other candidates wanted to.”
Initially, everyone agreed the Physician would receive 10 percent of the practice’s gross revenues. However, before the practice issued its first check to the Physician, the percentage was renegotiated to five percent. Davis felt 10 percent was too much to pay the Physician “for not doing anything.”
“Meet Your Pacific Liposculpture Medical Director”
Pacific Liposculpture opened for business in September 2010. Eventually, Davis took the responsibility for marketing away from Moscoso. Davis created Physician’s biographical information for the website from Physician’s resume, which appeared on the website under the heading, ‘Meet Our Medical Director.’ have authored.
A version of the had a page entitled, “Meet Your Pacific Liposculpture Medical Director.” The page basically read:
The Physician is an accomplished board-certified physician with more than 20 years of experience. The Physician, along with his highly trained liposculpture team, will help to minimize your risks while offering you the best possible care all under local anesthesia! Because of The Physician’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.
Formally, the Physician has held the positions of Chief of Staff, Chief of Anesthesia, and Chair of Quality Assessment at Cox Medical Centers. the Physician has also served as President of Ozark Anesthesia Associates in Springfield, Missouri. He is highly published and has extensive experience in his field from his more than 30 years as a United States Naval Captain.
The Physician supervises a team of highly trained liposuction-ists with a combined experience of well over 10,000 lipo procedures. Members of his team have participated in the liposculpture training of physicians and have authored several articles on various subjects from advanced lipo techniques to health and wellness. Share your treatment goals with one of the Physician’s specialists so that you will gain the knowledge that one needs to make the most informed decision.
As Medical Director of Pacific Liposculpture, the Physician offers patients a lifetime of experience and knowledge in his state-of-the-art outpatient surgical center.
Moscoso said that Davis wanted to downplay the fact that Physician was not a plastic surgeon. Moscoso further said that, during his employment at Pacific Liposculpture, Physician would come into the office once or twice a month at most, usually once a month. This seems to be the physician assistant supervision agreement.
The Physician’s Experience in the Anti-Aging Field Questioned
The Physician said he had been a licensed physician in California since 1983. He began his residency in anesthesiology in 1980 and was board certified in anesthesiology. He published one article, in 1983. As the Physician described it, his publication related to “the safety and efficacy of continuous spinal of anesthesia.” The Physician said 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, the Physician said he mostly assisted in surgeries, made rounds, and changed dressings and all the work interns would do. Asked again what type of surgeries he performed as an intern, the Physician said 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 surgeries, the Physician responded, “No, no. Just learning.”
The Physician held various anesthesiology positions between 1982 and 1998. He did not perform surgeries in these positions, but he did observe many. He said he performed general anesthesia for “hundreds” of patients during liposuction surgeries between 1984 and 1998. After practicing as an anesthesiologist for approximately 18 years, the Physician suffered a stroke. As a result, he did not practice medicine for 12 years, between 1998 and 2010.
Joining Pacific Liposculpture
In 2010, the Physician joined the American Academy of Anti-Aging Medicine. Asked to describe his experience in the anti-aging field when he began at Pacific Liposculpture, Physician said that he had been “going to meetings.” The Physician went to Florida for approximately six weeks of training. All the training was “didactic, not hands-on.”
At the time of his meeting with Pacific Liposculpture, in August or September 2010, he had approximately two months of experience in the anti-aging field, whereas, previously, all of his medical experience was in anesthesiology. At the time of this meeting, the Physician was still waiting for his hands-on training regarding surgeries. As of August 2010, he had not performed any “hands-on surgery.”
After the meeting, the Physician attended a program specifically on liposculpture 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. The Physician performed two procedures during the weekend course under the observation of a teacher.
Although prior to September 2010, he had not performed liposuction procedures, the Physician said that the flip side of that was that the whole time he was an anesthesiologist, he used to put catheters in people’s backs and arterial lines and central lines. The idea of liposculpture is feeling tissue planes and knowing what you’re doing. So, he felt he had a pretty good feel for that.
However, the Physician acknowledged that he did not perform a single procedure at Pacific Liposculpture. The full extent of the Physician’s personal surgery experience with liposuction was his two-day training session and what he observed.
The physician said 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 Physician could see how good Davis was.
The Physician 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 said that he watched Davis perform 10, or 15 procedures, mostly at first.
Davis Does Not Meet the Physician Assistant Supervision Requirements in California – Dr. Michael Sundine Testifies
Dr. Michael Sundine, who had been practicing medicine since 1987, testified as the Board’s expert.
Incompetence as a Liposuction Surgeon
Sundine opined that, as a physician assistant, Davis was not competent or qualified to perform liposuction surgery. During his plastic surgery residency, Sundine never learned of a situation where a physician assistant performed liposuction surgery without physician assistant supervision. He testified that Davis violated the applicable standard of care during the relevant time periods by performing liposuction surgery.
Sundine’s opinion was that someone performing liposuction surgery should be, at a minimum, “either an MD or a doctor of osteopathy,” and should be board certified in one of the recognized surgical specialties.
Measured against this standard, Sundine opined that Davis’s qualifications were lacking because he was not an MD or a doctor of osteopathy, he had not been board certified, and he had been trained by a radiologist.
Sundine opined that Davis lacked the education, training, and experience to perform liposuction surgery. Further, Sundine opined that the Physician did not meet the minimum qualifications for performing liposuction surgery and that Pacific Liposculpture “was set up so that Davis absolutely did function autonomously.” Sundine believed that, in performing liposuction surgeries, Davis engaged in the unlicensed practice of medicine.
Lacking the Right Credentials
Sundine testified that he believed 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 has.
Sundine testified that Davis violated the applicable standard of care regarding “appropriate and adequate informed consent” using the informed consent forms. One version of the informed consent form used by Pacific Liposculpture stated: “I hereby authorize the Physician, Davis, 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 the Physician really is the person who’s doing it, supervising it, or is directly there. Sundine thought that it was very misleading.
Duty of Care Violation
Describing another way 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 includes a thorough discussion of the risks and complications of the procedures. And from reading some of the complaints, it’s — it seems like these patients were asked to sign a form and whisked back to surgery. And it doesn’t seem — and I believe that they said that they didn’t have a lot of time prior to the procedure, the surgery.
And in that regard, Sundine thought the informed consent process was inadequate. Sundine opined that the applicable standard of care regarding informed consent required the practitioner to discuss the matters with the patient.
The Board Revokes Davis’s Physician Assistant License for Failing to Meet the Physician Assistant Requirements in California
The Board submitted its decision and order dated May 13, 2016, revoking Davis’s physician assistant license. The administrative law judge concluded that cause existed to impose discipline on Davis’s license because clear and convincing evidence established that Davis:
(1) engaged in the unlicensed practice of medicine;
(2) was grossly negligent in his post-operative treatment of patients;
(3) engaged in repeated acts of negligence in his care and treatment of patients;
(4) disseminated false and misleading advertising in violation;
(5) engaged in acts of dishonesty when he disseminated false and misleading advertising; and
(6) engaged in conduct that breached the rules or ethical code for physician assistants and which was unbecoming of a physician assistant.
This decision found that Davis choreographed a medical practice that ensured he would not be properly supervised as a physician assistant. Clear and convincing evidence established that Davis engaged in the unlawful practice of medicine without a license.
Why Did the State Legislature Establish The Statutory Scheme for 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. The legislative purposes was 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;
and 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.”
Functions of a Physician Assistant
Failing to meet the physician assistant supervision requirements in California will prevent you from setting up your own private practice. The process can be painstaking but building your company from the ground up legally is all worth it.
Remember that a person may not practice as a physician assistant unless licensed. To become licensed, a physician assistant must complete an approved program and pass a written examination administered by the Board.
Notwithstanding any other provision of law, 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 employment of a physician assistant. The following are also critical:
- A physician assistant may only provide those medical services which he or she is competent to perform, and which are consistent with the physician assistant’s education, training, and experience, and which are delegated in writing by a supervising physician who is responsible for the patients cared for by that physician assistant.
- 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.
- A physician assistant acts as an agent for the supervising physician.
- A physician assistant may perform surgical procedures without the personal presence of the supervising physician which are customarily performed under local anesthesia.
- A supervising physician was defined 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.
- 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…
- The supervising physician has a continuing responsibility to follow the progress of the patient and to make sure that the physician assistant does not function autonomously. The supervising physician shall be responsible for all medical services provided by a physician assistant under his or her supervision.
Do Physician Assistants Need a Supervising Physician? Takeaway Rules for Physician’s Assistants That You Need to be Aware of
By all means, you should avoid cutting corners if you want to stay in the business and achieve success that lasts. Follow the legal procedures and make sure you meet physician assistant supervision requirements in California.
If you are passionate about opening your physician assistant private practice, consult an expert first. Incorporation Attorney can help you set up a law-compliant business. Our team of seasoned attorneys will guide you through the legal aspects of a corporation and explain the legal matters that you need to understand.
Come talk to us today so you can start moving forward!
