Markow v. Rosner – $8M Medical Malpractice Verdict Affirmed In Part, Reversed in Part

An appeals court has affirmed in part and reversed in part an $8 million damages award in favor of a California couple who sued a doctor and a hospital for medical malpractice after the husband, undergoing pain management treatment, was rendered quadriplegic. Hospital Room

Jurors had awarded nearly $7 million to the patient and another $1 million to his wife (who sued for loss of consortium). The personal injury lawsuit, Markow v. Rosner, was recently considered by the California Court of Appeal for the Second Appellate District, Division One.

The plaintiffs filed claims against two defendants:  the doctor who provided care and the hospital where the care was received. While hospitals certainly can be negligent in their own right for medical malpractice resulting in a patient’s injury, the assertion here was that the hospital was vicariously liable for the actions of the doctor. Employers can be held vicariously liable for the actions of employees acting in the course and scope of employment. However, the doctor in this case wasn’t an employee; he was an independent contractor. The question was whether the plaintiff’s belief to the contrary was reasonable (i.e., did the doctor or hospital make it clear that the doctor was not an agent or employee of the hospital?).

The facts of this case stretched back to 2003. The plaintiff had started to suffer from serious and chronic pain at that time, owing to a car accident. The pain affected his neck, shoulder, back, and arm. He researched health care providers and located the defendant, who was the director of the hospital pain center. The plaintiff became one of the defendant doctor’s patients, even though he lived 40 miles away.

The hospital pain center was a block away from the actual hospital. The hospital owned the supplies and equipment, and the nurses and other non-physician staff were employed by the hospital. However, in California, there is a ban on the corporate practice of medicine, so doctors aren’t employed by hospitals. Instead, this doctor was a partner in another company, which separately billed patients – including the plaintiff – for professional services. Even so, the defendant doctor usually gave patients business cards with the hospital’s name on it, indicating he was the director of the pain center. His website also did not name this separate company but instead listed his position as the pain center director.

However, the hospital admissions forms that the plaintiff received on several occasions clearly and unambiguously stated that California law prohibits the corporate practice of medicine, and thus all doctors are independent contractors, not employed by hospitals. The plaintiff signed these forms on multiple occasions.

In 2010, the plaintiff underwent a nerve root block performed by the defendant doctor. This procedure was conducted at the base of the skull near the brain stem. The plaintiff was in enormous pain after the procedure. A week later, he began to suffer neurological problems and weakness. His condition deteriorated and left him quadriplegic. He was hospitalized for two years.

When the plaintiff filed a personal injury lawsuit against both the doctor and the hospital, an expert witness testified that the slow onset of quadriplegia was consistent with a misplaced needle nicking the radicular artery, combined with a coincidental blood clot that resulted in a cervical stroke.

The jurors found both the doctor and the hospital negligent but found that only the doctor’s negligence had contributed to the plaintiff’s injuries. Nonetheless, the jurors assigned the hospital 40 percent liability on the basis of vicarious liability and awarded $8 million in damages.

Both defendants appealed. The appellate court ruled that while the jury’s negligence finding against the doctor was supported by substantial evidence, the finding against the hospital was not. Therefore, the hospital’s request for judgment notwithstanding the verdict should have been granted. Thus, the court reversed with regard to the hospital but affirmed with regard to the doctor.

Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.

Additional Resources:

Markow v. Rosner, Oct. 4, 2016, California Court of Appeal for the Second Appellate District, Division One

More Blog Entries:

Smotherman v. Cass Regional Medical Center – Slip and Fall Verdict Not Nullified by Juror Misconduct, Sept. 28, 2016, Greenville Medical Malpractice Lawyer Blog

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