Markow v. Rosner — Oct. 2016 (Summary)

NEGLIGENCE/OSTENSIBLE AGENT

Markow v. Rosner
No. B260715, B262530 (Cal. Ct. App. Oct. 4, 2016)

The Court of Appeal for the Second District of California reversed a superior court’s ruling, holding that a patient was not entitled to damages from a hospital for the negligence of a physician.

The patient underwent a series of pain management treatments administered by the medical director of the pain center at the hospital.  After the pain management treatment, the patient experienced tremendous pain and began to develop neurological problems.  The patient’s condition deteriorated, and eventually left him quadriplegic.  A jury found the hospital was liable for the patient’s injuries because the court believed the physician was an ostensible agent of the hospital based on the fact that the patient found the physician on the hospital’s website, the physician was the medical director of a center at the hospital, and that when the patient chose the physician, he believed the physician was an employee of the hospital.

The appellate court disagreed, finding that the patient had substantial notice that the physician was not an employee of the hospital.  Before the patient underwent each pain management procedure, he signed conditions of admissions forms that contained an express provision informing the patient that his physician is not an agent of the hospital.  The patient also made payments for his care to the physician’s actual employer, not the hospital.  The court determined that the patient received actual notice that the physician was not an agent of the hospital, and, therefore, the hospital could not be held liable for the physician’s negligence.