Markow v. Rosner (Oct. 4, 2016, B260715) __ Cal.App.4th __ [2016 WL 5765470]
Michael Markow and his wife sued Markow’s pain management physician, Dr. Howard Rosner, and Cedars-Sinai Medical Center for professional negligence and loss of consortium after Dr. Rosner performed a nerve root block procedure that rendered Markow a quadriplegic. During his multiple visits to Dr. Rosner, Markow had initialed twenty-five separate Conditions of Admissions forms explaining that, because of the ban on the corporate practice of medicine, Dr. Rosner was neither employed by nor an agent of Cedars. But Markow theorized that Dr. Rosner was an ostensible agent of Cedars, in part because he marketed himself as the director of Cedars’s pain clinic. A jury found that both Dr. Rosner and Cedars were negligent, but that only Dr. Rosner’s negligence was a substantial factor in causing Markow’s injuries. The jury nonetheless apportioned 40 percent fault to Cedars, apparently on the basis that Dr. Rosner was Cedars’s ostensible agent. The trial court struck the jury’s apportionment of fault but otherwise denied Cedars’s JNOV motion, and both Dr. Rosner and Cedars appealed.
In a split decision, the Court of Appeal reversed the judgment as to Cedars and affirmed as to Dr. Rosner. The majority held Cedars was entitled to JNOV because Markow knew or should have known that Dr. Rosner was not Cedars’s agent. The court reasoned that Markow’s alleged contrary belief was unreasonable because he initialed numerous forms disclosing Dr. Rosner’s status as an independent contractor. The court distinguished several prior cases in which plaintiffs had been allowed to pursue ostensible agency theories against hospitals for the work of physicians; those cases 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 rejected arguments that the evidence of negligence and future economic damages was insufficient, that a special verdict was inconsistent, and that an award of costs under Code of Civil Procedure section 998 was improper.)
Justice Johnson dissented from the decision to reverse the judgment as to Cedars. In his view, the jury’s verdict should not have been disturbed because there was competing evidence of ostensible agency—while Markow initialed numerous forms disclosing Dr. Rosner’s status as an independent contractor, Dr. Rosner gave the appearance he was employed by Cedars because he worked in a building displaying Cedars’s name and logo, he used Cedars business cards and letterhead, his website directed patients to phone a Cedars number, and the pain clinic’s equipment was owned by Cedars (though Markow was apparently unaware of these facts).
(Disclosure: Horvitz & Levy LLP was appellate counsel for Cedars.)
Peder K. Batalden
Horvitz & Levy LLP
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