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Markow v. Rosner (2016)

October 4, 2016

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In this medical malpractice action, Horvitz & Levy LLP obtained reversal of a judgment awarding over $5 million in damages.  Michael Markow sued Dr. Howard Rosner and Cedars-Sinai Medical Center for professional negligence after Markow became a quadriplegic following treatment by Dr. Rosner. Markow had previously initialed twenty-five separate admission forms explaining that Dr. Rosner was neither employed by nor an agent of Cedars. Markow nevertheless pursued an ostensible agency theory against Cedars based on evidence that Dr. Rosner marketed himself as the director of Cedars’s pain clinic. A jury found in favor of Markow and both defendants appealed.  Horvitz & Levy represented Cedars on appeal.

In a published opinion, the California Court of Appeal (Second Appellate District, Division One) reversed the judgment against Cedars but affirmed as to Dr. Rosner. The court held Cedars was entitled to judgment in its favor because the evidence conclusively established that Markow knew or should have known that Dr. Rosner was not Cedars’s agent. The court distinguished several prior cases on the ground they involved emergencies or related situations where plaintiffs had no opportunity to discern whether their physicians were employees or independent contractors of hospitals.

As to Dr. Rosner, the court also added to the growing body of law confirming that “a market or exchange  value” (i.e., the negotiated amounts accepted as payment in full by healthcare providers, rather than the much higher amounts stated in the healthcare providers’ bills) is “the proper way to think about reasonable value of medical services” for both past and future medical expense damages.