Markow v. Rosner
3 Cal. App. 5th 1027
| Cal. Ct. App. | 2016Background
- Michael and Francine Markow sued Dr. Howard Rosner (pain-management physician) and Cedars-Sinai Medical Center after a November 11, 2010 cervical nerve-root procedure left Michael quadriplegic; jury found Rosner negligent and Cedars negligent but not a substantial cause of injury.
- Jury nevertheless found Cedars vicariously liable on an ostensible-agency theory and apportioned 40% fault to Cedars; trial court later struck the apportionment of fault and denied Cedars’s JNOV motion.
- Markow had repeatedly (25 times) signed and initialed Cedars’s Conditions of Admission and multiple procedure consent forms stating that physicians are independent contractors and not agents or employees of Cedars; forms explicitly listed General Anesthesia Specialists Partnership (GASP).
- Evidence also showed Cedars branded the pain clinic (location in a Cedars-owned building, Cedars website identifying Rosner as medical director, Cedars logo on some correspondence and business cards), and GASP billed and was paid for Rosner’s services.
- Plaintiffs advanced two causation theories: (1) allergic reaction to iodine-based contrast (Omnipaque) used despite documented allergy, and (2) mechanical trauma to the cervical cord during the procedure; experts supported both as more-probable-than-not causes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cedars could be held vicariously liable under ostensible agency | Cedars held out Rosner as its medical director (website, clinic signage, logo, cards), so Markow reasonably relied on Cedars as the provider | Cedars gave repeated, conspicuous written notice that physicians (including anesthesiologists) are independent contractors; Markow signed/initialed 25 admission forms and multiple consent forms | Reversed as to Cedars: actual notice in non-emergency setting made ostensible agency unreasonable as a matter of law; Cedars entitled to JNOV on that claim |
| Sufficiency of evidence that Rosner was negligent and caused injuries | Plaintiffs: Omnipaque or mechanical trauma more likely than coincidental stroke; experts gave reasoned opinions | Rosner: causation uncertain; coincidental cervical stroke possible | Affirmed as to Rosner: substantial evidence supported negligence and causation findings |
| Whether special verdict form errors/inconsistent findings required new trial | Plaintiffs: special verdict properly framed ultimate facts | Rosner: verdict inconsistent (Cedars found not a substantial cause but assigned 40% fault) | No new trial: trial court appropriately resolved inconsistency by striking improper apportionment to vicariously liable Cedars |
| Validity of plaintiffs’ joint, conditional Code Civ. Proc. § 998 offer and entitlement to costs | Offer was joint and conditioned on accuracy of offeree’s insurance disclosure but allowed evaluation; plaintiffs awarded more than offer | Rosner: joint offer invalid and conditioning on insurer disclosure invalid | Affirmed: joint § 998 offer valid; conditioning on accuracy of offeree’s discovery responses valid; plaintiffs entitled to § 998 costs |
Key Cases Cited
- Mejia v. Community Hospital of San Bernardino, 99 Cal.App.4th 1448 (Cal. Ct. App.) (ostensible agency standard; hospital generally held to have held itself out absent contrary notice)
- Whitlow v. Rideout Memorial Hospital, 237 Cal.App.4th 631 (Cal. Ct. App.) (disclaimers insufficient in emergency contexts where patient cannot read or act on notice)
- Jacoves v. United Merchandising Corp., 9 Cal.App.4th 88 (Cal. Ct. App.) (dual-status physicians who direct hospital units may create agency issues)
- Deocampo v. Ahn, 101 Cal.App.4th 758 (Cal. Ct. App.) (joint § 998 offer and conditioned offer on offeree’s discovery responses upheld)
- Howell v. Hamilton Meats & Provisions, Inc., 52 Cal.4th 541 (Cal. 2011) (market/exchange value principle for reasonable value of medical services)
- Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747 (Cal. 2012) (expert opinion must be a reasoned explanation; standards for admissibility)
- Metropolitan Life Ins. Co. v. State Bd. of Equalization, 32 Cal.3d 649 (Cal. 1982) (agency fact becomes question of law when facts can be viewed in only one way)