Overcoming a patient’s testimony that he thought his pain management physician was employed by the hospital, an appellate court said his signature on multiple admission forms explaining otherwise is sufficient to overturn a jury’s verdict on liability.
After suffering chronic pain since an automobile accident, Michael Markow began treating with Howard Rosner, MD, an anesthesiologist specializing in pain management, in 2006. According to testimony, Markow researched Dr. Rosner on the Internet and was impressed that Dr. Rosner was the medical director of the pain center at Cedars-Sinai Medical Center. Markow testified he chose Dr. Rosner for his physician because Dr. Rosner “worked for the best hospital, one of the best hospitals in the country.”
In fact, Dr. Rosner was not an employee of the hospital, but was instead a partner in the General Anesthesia Specialists Partnership Medical Group, which billed patients, including Mr. Markow, for Dr. Rosner’s professional services. Dr. Rosner did not usually use business cards for the medical group, but instead offered cards imprinted with Cedars’ name. Also, with Cedars’ authorization, Dr. Rosner used a Cedars logo on his letterhead.
Over a several-year period, Mr. Markow signed and initialed 25 Conditions of Admissions forms bearing Cedars’ name and logo. A form signed and initialed by Mr. Markow in 2006 explained:
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 2010, Mr. Markow experienced a serious injury in the course of receiving a nerve root block by Dr. Rosner. In a suit against Dr. Rosner and Cedars-Sinai, a jury found Dr. Rosner negligent in his treatment of Mr. Markow and also found Cedars vicariously liable for Mr. Markow's damages because the hospital “intentionally or carelessly” created the impression that Dr. Rosner was the hospital’s agent and that Mr. Markow was harmed as a result of his reasonable belief that Dr. Rosner was Cedars’ agent.
On appeal, the Second District Court of Appeal analyzed the principle of “ostensible agency” and explained that in the hospital setting, ostensible agency is commonly expressed as having two elements: “(1) conduct by the hospital that would cause a reasonable person to believe that the physician was an agent of the hospital and (2) reliance on that apparent agency relationship by the plaintiff.”
Importantly, the court explained that while the existence of an agency relationship is usually a “question of fact” (which means that it is decided by a jury), it can become a “question of law” (meaning a judge can decide it) “when the facts can be viewed in only one way.”
In the case, Markow v. Rosner, the court said that Mr. Markow “either knew or should have known, based on the Conditions of Service forms that he initialed and signed on multiple occasions . . . that [Dr.] Rosner was not Cedars’ agent or employee, but was instead an independent contractor.” Indeed, the court said the evidence was so clear in that regard that the question was that of “law” not of “fact,” thus allowing the appellate court to negate the jury’s finding.
In other comments, the court distinguished its holding from other recent ostensible agency cases, such as Mejia v. Community Hospital of San Bernardino and Whitlow v. Rideout Memorial Hospital, by noting that Mr. Markow chose Dr. Rosner as his personal physician, as opposed to having a physician assigned to him in an emergency room.
Gordon Ownby is CAP’s General Counsel. Comments on Case of the Month may be directed to gownby@CAPphysicians.com. This information should not be considered legal advice applicable to a specific situation. Legal guidance for individual matters should be obtained from a retained attorney.