Markow v. Rosner

• Decision Date: 04 October 2016
• Docket Number: B260715,B262530
• Citation: 3 Cal.App.5th 1027,208 Cal.Rptr.3d 363
• Court: California Court of Appeals
• Parties: Michael MARKOW et al., Plaintiffs and Respondents, v. Howard L. ROSNER et al., Defendants and Appellants.

3 Cal.App.5th 1027

208 Cal.Rptr.3d 363

Michael MARKOW et al., Plaintiffs and Respondents,

v.Howard L. ROSNER et al., Defendants and Appellants.

B260715

B262530

Court of Appeal, Second District, Division 1, California.

Filed October 4, 2016

Cole Pedroza, Curtis A. Cole, San Marino, Kenneth R. Pedroza, E. Todd Chayet ; Moore McLennan, Raymond R. Moore, Glendale, and Arthur E. Zitsow for Defendant and Appellant Howard L. Rosner.

Horvitz & Levy, S. Thomas Todd, David Ettinger, Encino; Reback, McAndrews, Kjar, Warford, Stockalper & Moore and Robert C. Reback, Manhattan Beach, for Defendant and Appellant Cedars–Sinai Medical Center.

Goldstein, Gurbuz & Robertson, Arnold E. Goldstein and Joy Lynn Robertson for Plaintiff and Respondent Michael Markow.

Law Offices of Howard A. Kapp and Howard A. Kapp, Los Angeles, for Plaintiff and Respondent Francine Markow.

LUI, J.

Plaintiffs Michael Markow (Markow) and his wife, Francine Markow, sued Markow's pain management physician, Howard L. Rosner, M.D., and Cedars–Sinai Medical Center (Cedars) for professional negligence and loss of consortium after Rosner's treatment rendered Markow quadriplegic. A jury found that both Rosner and Cedars had been negligent, but that only Rosner's negligence had been a substantial factor in causing Markow's severe injuries. The jury nonetheless apportioned 40 percent of fault to Cedars, apparently on the basis of its finding that Rosner was Cedars's ostensible agent. Both Rosner and Cedars appealed.

Cedars contends that, as a matter of law, Rosner could not be found to be its ostensible agent because in Conditions of Admissions forms Markow initialed and signed on 25 separate occasions Cedars unambiguously informed Markow that all physicians furnishing services to patients were independent contractors, not agents or employees of Cedars. We agree and reverse the judgment as to Cedars. Under the circumstances, Markow knew or should have known that Rosner was not Cedars's agent. Markow's belief to the contrary was not objectively reasonable, and Cedars's motion for judgment notwithstanding the verdict should have been granted.

Rosner contends that the evidence was insufficient to support the jury's finding he was negligent, the special verdict was hopelessly inconsistent and warranted a new trial, the award of future economic damages was excessive, and plaintiffs were not entitled to costs under Code of Civil Procedure section 998.¹ We find no merit in Rosner's claims and therefore affirm the judgment against him.

BACKGROUND

1. Markow's decision to seek treatment from Rosner

Markow began to experience serious and chronic pain in 2003, following an automobile accident. By 2006, Markow suffered from “continuous” and “severe” pain in his neck, back, arm, and shoulder. To help Markow manage his pain, one of his doctors referred him to Rosner.

Markow researched Rosner on the Internet before going to see him. Markow visited Cedars's Web page and was impressed to discover that Rosner was the medical director of the pain center at Cedars. The Web page stated that the center was the largest pain management program in the Western United States, with 14 to 15 practitioners, “from psychologists through interventional pain physicians [and] two full-time committed procedure rooms.” The center treats approximately 27,000 patients per year and performs approximately 600 procedures per month. Although Cedars was 30 to 40 miles from his home, Markow elected to become one of Rosner's patients. Markow testified he did so because Rosner was the medical director of a pain center at a major medical center that was also a teaching hospital. Markow explained that he went to Rosner because he “worked for the best hospital, one of the best hospitals in the country.”

Markow's first appointment with Rosner was on May 15, 2006.

2. The actual and apparent relationship between Cedars and Rosner

Cedars's pain center was located down the street from the actual hospital in a building owned by Cedars. Cedars owns or supplies the pain center's equipment and consumables, and the nurses and other nonphysician staff members are employees of Cedars. In keeping with California's ban on the corporate practice of medicine (Bus. & Prof. Code, § 2400 ), Rosner was not an employee of Cedars, but was instead a partner in the General Anesthesia Specialists Partnership Medical Group (GASP). GASP billed patients, including Markow, for Rosner's professional services, and the evidence at trial demonstrated that Markow paid GASP for Rosner's services.

Nonetheless, Rosner did not usually give patients his GASP business cards, but instead gave them business cards imprinted with Cedars's name, without any reference to GASP. Cedars's Web site identified Rosner as the medical director of its pain center, also without reference to GASP. The Web page for the pain center further directed potential patients to phone “1–800–CEDARS–1” to make an appointment. However, Rosner's “Cedars” business card and his correspondence (to the extent reflected in the record) listed a different number in the 310 area code. In addition, with Cedars's authorization, Rosner used a Cedars logo in his letterhead when corresponding with referring physicians. There were no signs in the pain center offices informing patients that Rosner worked for GASP.

3. Cedars's disclosures regarding physicians' status as independent contractors

Over the four-and-one-half-year period that Rosner treated Markow, Markow signed and initialed 25 Conditions of Admissions forms bearing Cedars's name and logo. In May 2006, when Markow began his treatment with Rosner, the Conditions of Admissions form (Oct. 2003 revision) was three pages long and single-spaced. The second paragraph on the first page of this form was printed in boldface and in a larger pitch than any of the other paragraphs. It stated as follows:

“2. Legal Relationship Between Hospital and Physicians

“In accordance with California law which prohibits the Corporate practice of Medicine, physicians are independent contractors and are neither employed by nor agents of this facility. Patient recognizes that Physicians furnishing services to the Patient, including without limitation Emergency Room physicians, radiologists, pathologists and anesthesiologists, are all independent contractors with Patient for the purposes of the provision of professional services and are not employees or agents of Cedars–Sinai Medical Center for such purposes. _____ (Initial here) .”

In the smaller pitch used in the rest of the document and without boldface, the disclaimer continued and stated: “The physician groups include, but are not limited to: ... General Anesthesia Specialists Partnership Medical Group.” The disclaimer paragraph was the only portion of the entire three-page document that a patient was asked to separately initial.

On July 15, 2006, the Conditions of Admissions form was amended. The third paragraph on the first page of the amended form was printed in a larger pitch than any of the other paragraphs. It stated as follows:

“3. PHYSICIANS ARE INDEPENDENT CONTRACTORS

“All physicians and surgeons furnishing services to the Patient, such as radiologists, pathologists, anesthesiologists and the like, are independent contractors and are not employees or agents of the Hospital. These physicians may bill separately for their services.”

Following this paragraph was either a boldfaced “Patient initials: _____ ” or a large rectangle above the descriptor, “Patient initials: _____.” Beneath the space for initialing, the disclaimer continued: “The patient is under the care and supervision of his / her attending physician and it is the responsibility of the Hospital and its nursing staff to carry out the instructions of such physician. It is the responsibility of the Patient's physician or surgeon to obtain the Patient's informed consent, when required, to medical or surgical treatment, special diagnostic or therapeutic procedures, or Hospital services rendered to the Patient under the general and special instructions of the physician.”

Markow testified that when he was first presented with a Conditions of Admissions in May 2006, he read it and, for some time thereafter, he continued to read each subsequent Conditions of Admissions before signing and initialing. Ultimately, however, he stopped reading them because “they all appeared to be the same.” Markow believed that the independent contractor disclaimer did not apply to Rosner because “he was director of pain management for the hospital” and, as a result, he “can't be an independent contractor.” Markow thought Rosner must be a “full-time employee” of Cedars. Markow further testified that he believed, but was not certain, that his neurologist—who was also the director of a department at Cedars and also had an office in the same building as Rosner's—was an employee of Cedars.

In addition to the 25 Conditions of Admissions documents, Markow signed at least eight documents entitled, “Authorization for & Consent to Surgery or Special Diagnostic or Therapeutic Procedures or Blood Transfusions,” prior to and on the date of the injurious procedure. Each of these contained the following paragraph on the first page: “3. I understand that the person or persons in attendance at such operation or procedures, as indicated above, for the purpose of administering anesthesia, and the person or persons performing other specialized professional services, such a radiology, pathology, and the like, are not the agents, servants or employees of Cedars–Sinai Medical Center, but are independent contractors performing specialized services on my behalf and, as such, are the agents of myself.”

4. Markow's injuries during treatment

On November 11, 2010, Rosner performed a nerve root block procedure on Markow. This procedure was similar to other procedures that Rosner had performed on Markow, but was much higher on the spine, at the base of the skull near the brain stem. Rosner conceded at trial that the procedure...