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.
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.
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
Markow's first appointment with Rosner was on May 15, 2006.
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.
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 rev.) was three
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:
"All physicians and surgeons furnishing services to the Patient, such as radiologists, pathologists, anesthesiologists and the like, are independent contractors and are
Following this paragraph was either a boldfaced "
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
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."
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 was both "very rare" and quite "risky."
On November 19, 2010, eight days after the procedure, Markow began to develop neurological problems in his upper and lower extremities. On November 20, 2010, due to "substantial sensory deficit" on one side of his body and "weakness" on the other, Markow was rushed to Cedars's emergency room. Over the course of the next several weeks, Markow's condition deteriorated, eventually leaving him quadriplegic. Markow remained hospitalized for approximately the next two years.
At the time of trial, Markow continued to suffer from the lancing facial pain, which is known as trigeminal neuralgia or trigeminal pain.
At trial, plaintiffs and their experts advanced two different causes for Markow's paralysis: Either Rosner used an iodine-based contrast (Omnipaque) to which Markow was allergic or Rosner caused mechanical trauma to Markow's cervical cord during the procedure.
With regard to their Omnipaque theory, plaintiffs presented evidence that although hospital records documented that Markow was allergic to iodine contrast and that Rosner had been aware of this allergy ever since he began treating Markow on May 15, 2006, Rosner, acting "in haste," filled out an "intra-procedure" order requesting Omnipaque for the November 11, 2010 procedure. Plaintiffs further established that no change in the contrast was ever documented for the November 11, 2010 procedure, that plaintiffs were billed by Cedars for Omnipaque, and that the billing form is completed by nurses during the procedure.
As for their mechanical trauma theory, plaintiffs established that immediately following the procedure, Rosner told Markow that the reason he was experiencing intense pain in his face was because Rosner "may have hit something he shouldn't have hit, touched something he shouldn't have touched...." Plaintiffs' expert neurologist testified that the slow onset of Markow's quadriplegia was consistent with a vasospasm caused by a misplaced needle nicking the radicular artery that supplied the nerve root. The expert also testified that there was "objective evidence of trauma" because immediately following the procedure Markow suffered from trigeminal pain, and an MRI scan taken days after the procedure showed edema or swelling at the source of such pain, the trigeminal apparatus.
Rosner presented evidence that Markow's quadriplegia resulted from a cervical stroke induced by a purely coincidental blood clot, as shown by the slow deterioration that Markow suffered following the procedure. Plaintiffs' expert neurologist testified that the odds of such a stroke are one in 10,000.
Plaintiffs sued defendants for professional negligence and loss of consortium.
Using a special verdict form, the jury found Rosner "negligent in the diagnosis or treatment" of Markow and that his negligence was a substantial factor in causing Markow's quadriplegia. The jury also found that Cedars was negligent in its treatment of Markow, but found its negligence was not a substantial factor in causing harm to Markow. The jury found Cedars vicariously liable for plaintiffs' damages because it "intentionally or carelessly" created the impression that Rosner was its agent and Markow was harmed as a result of his reasonable belief that Rosner was Cedars's agent. Although Rosner was the only defendant found to have caused Markow's injuries, the jury, in direct contradiction of the special verdict's instructions, allocated 60 percent of the fault to Rosner and 40 percent to Cedars. After reducing damages for noneconomic losses to $250,000 pursuant to Civil Code section 3333.2, plaintiffs' damages award totaled $5.2 million.
Cedars requested the trial court to strike the apportionment of fault, while Rosner moved for a new trial on grounds including the inconsistency of the jury's findings. The trial court denied Rosner's motion and granted Cedars's. It found that the jury erroneously answered the allocation question and struck the allocation of fault.
Cedars subsequently moved for judgment notwithstanding the verdict and for a new trial on several grounds, including that the verdict was contrary to law because the Conditions of Admissions conclusively established that Rosner was not Cedars's ostensible agent. The trial court denied these motions.
Rosner and Cedars timely appealed, and we consolidated their separate appeals.
It was undisputed that on 25 occasions over the course of four and one-half years Markow received, read (until he realized that he recognized the language as the same used in forms he had previously read), signed, and initialed Conditions of Admissions forms that informed him that "
The wording of the disclaimer in each form, particularly in the version of the form in use from 2007 through 2010, was simple and unambiguous, not obtuse "legalese." Although plaintiffs and the dissent argue that the form
In addition, Markow signed at least eight "Authorization for & Consent to Surgery or Special Diagnostic or Therapeutic Procedures or Blood Transfusions" forms prior to and on the date of the injurious procedure, and in each of these he again acknowledged that "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 as 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." When Rosner performed procedures on Markow to alleviate his pain, Rosner was a person in attendance for the purpose of performing specialized professional services. Thus, for every procedure, Markow signed at least one, and sometimes two forms acknowledging his receipt of actual notice that Rosner was an independent contractor, not an agent or employee of Cedars.
Furthermore, although Rosner's affiliation with Cedars, in conjunction with the allure of Cedars's reputation, played a significant role in Markow's decision to be treated by Rosner, it was undisputed that Markow chose Rosner to be his physician. Markow did not go to Cedars seeking care from
Accordingly, Markow indisputably either knew or should have known, based upon the Conditions of Admissions forms that he initialed and signed on multiple occasions, the "Authorization for & Consent to Surgery or Special Diagnostic or Therapeutic Procedures or Blood Transfusions" forms that he also signed on at least eight occasions, and Rosner's status as Markow's personal physician, that Rosner was not Cedars's agent or employee, but was instead an independent contractor.
Plaintiffs cite a variety of factors to support their ostensible agency theory, such as the contents of Cedars's Web site identifying Rosner as the director of its pain clinic and inviting would-be patients to phone 1-800-CEDARS-1; the location of the pain clinic in a building owned by Cedars and displaying Cedars's name and logo; Rosner's use, with Cedars's authorization, of Cedars's name and logo on his business cards and correspondence with physicians;
Plaintiffs rely upon a number of distinguishable cases. In most of these cases, the defendant did not give the plaintiff notice of the lack of agency or employment. (Stanhope v. L. A. Coll. of Chiropractic (1942) 54 Cal.App.2d 141 [128 P.2d 705]; Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475 [61 Cal.Rptr.3d 754]; Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154 [41 Cal.Rptr. 577, 397 P.2d 161]; Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88 [11 Cal.Rptr.2d 468] (Jacoves).) Others (Stanhope, supra, 54 Cal.App.2d 141; Whitlow, supra, 237 Cal.App.4th 631) involve patients seeking care in an emergency room context where, as noted in Mejia, supra, 99 Cal.App.4th at page 1454, "an injured patient in need of immediate medical care cannot be expected to understand or act upon that information." In Mejia itself, the injured patient sought treatment in an emergency room and the hospital did not provide her any notice that the physicians were not its agents or employees. The appellate court concluded that "absent evidence that plaintiff should have known that the [allegedly negligent physician] was not an agent of respondent hospital, plaintiff has alleged sufficient evidence to get to the jury merely by claiming that she sought treatment at the hospital." (Id. at p. 1460.)
Although notice that physicians were independent contractors was given in Whitlow, supra, 237 Cal.App.4th 631, both in a Conditions of Admissions form and on a sign on the wall of the emergency room registration area, the patient was suffering excruciating pain from a brain hemorrhage and was unable to read the Conditions of Admissions form. Moreover, no one read it to her. (Id. at pp. 633-634.) Under those circumstances, the appellate court rejected "the notion that a signature on an admissions form conclusively constitutes notice to a patient seeking care in an emergency room that the treating physician, whom she did not choose and did not know, is not an agent of the hospital." (Id. at p. 641, italics added.)
Finally, in Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal.App.4th 741 [69 Cal.Rptr.2d 640], an experienced real estate investor
The dissent relies upon a federal trial court case,
The dissent also cites a second federal trial court case, Van Horn v. Hornbeak (E.D.Cal., Feb. 18, 2010, No. CIV F 08-1622 LJO DLB) 2010 WL 599885, in support of its view that the Conditions of Admissions forms did not provide Markow with notice as a matter of law. (Dis. & conc. opn. at pp. 1061-1062, post.) Van Horn, a pregnant state prison inmate, was taken to a hospital four times: The first three visits were to the emergency room and on the fourth visit she was in labor. On each occasion she signed a Conditions of Admissions form stating that all physicians and surgeons furnishing services to patients were independent contractors. (Van Horn, at p. *2.) The trial court denied the hospital's summary judgment motion, stating: "[P]laintiff made a sufficient showing on the question of ostensible agency to avoid summary judgment. Plaintiff declared that she had no reason to believe that [the physicians] were not hospital employees, that she believed they were, `and was never told otherwise.' She was shackled, in pain, and `forced' to sign the forms." (Id. at p. *10.) Van Horn thus represents an aggravated form of an emergency room case. Not only was the plaintiff seeking care in an emergency room on her first three visits, she was literally a prisoner in shackles. She had no choice in where to seek treatment, but was instead at the mercy of prison authorities and was "forced" to sign the form or, presumably, forgo medical care. Markow, however, was not a prisoner and chose Rosner to treat him. If Markow found Rosner's independent contractor status unacceptable, he was free to leave and seek treatment elsewhere — a course of action not available to inmate Van Horn.
None of the cases relied upon by the plaintiffs and the dissent addressed treatment of a patient by his own physician in a nonemergency context where the patient repeatedly read and initialed a prominent notice that his physician was an independent contractor, not an agent or employee of the hospital. Accordingly, none of these cases supports the proposition that ostensible agency remains a factual issue where the patient knew or should have known that his physician was not the hospital's agent. We conclude the jury's ostensible agency finding is contrary to law.
Rosner contends the verdict was not supported by substantial evidence.
In reviewing the sufficiency of evidence to support the jury's finding, we review the record in the light most favorable to the prevailing party, resolving in favor of the prevailing party all conflicts in either the evidence or the reasonable inferences to be drawn therefrom, to determine whether the record contains substantial evidence, contradicted or uncontradicted, supporting the finding. (State Farm Fire & Casualty Co. v. Jioras (1994) 24 Cal.App.4th 1619, 1625-1626 [29 Cal.Rptr.2d 840]; Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 544 [138 Cal.Rptr. 705, 564 P.2d 857], overruled on another ground in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 [34 Cal.Rptr.2d 607, 882 P.2d 298].) "`Substantial evidence' is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value." (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651 [51 Cal.Rptr.2d 907].) "The focus is on the quality, rather than the quantity, of the evidence." (Ibid.) "Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence." (Ibid.) "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record." (Id. at p. 652.) The testimony of a single witness may be sufficient. (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1075 [124 Cal.Rptr.2d 142, 52 P.3d 79].)
Plaintiffs presented undisputed evidence that Rosner erred by ordering an iodine-containing contrast, Omnipaque, for the November 11, 2010 procedure. In addition, plaintiffs presented evidence which strongly suggested that this initial error was not corrected. There was no documentation showing that an iodine-free contrast was substituted for the Omnipaque before the procedure. Moreover, there was undisputed evidence that plaintiffs were billed for Omnipaque and only Omnipaque — that is, plaintiffs were not inadvertently billed for two contrasts, one containing iodine and one iodine-free contrast. In addition, plaintiffs' pain management expert testified that delayed hypersensitivity reactions to iodine agents, such as Omnipaque, are quite common and typically occur six to 10 days later. Such a delay in this case would be consistent with the nine-day interval between November 11, 2010, the day of the procedure, and November 20, 2010, the day when Markow was rushed back to Cedars.
With respect to the alternate theory that Markow was injured by means of negligent mechanical trauma, it was undisputed that Markow suffered from trigeminal nerve pain immediately upon awakening from the procedure. It was further undisputed that such pain was unprecedented for Markow. Although he had received many similar treatments lower on his cervical spine, he had never previously experienced thousands of "hot lancets" in his face. In addition, an MRI scan taken upon Markow's return to Cedars on November 20, 2010, revealed that there was swelling at the trigeminal apparatus. Plaintiffs' expert neurologist testified that the swelling was "objective evidence of trauma," and that the chances of Markow suffering a purely coincidental stroke in his cervical spine at or around the same time he underwent the November 11, 2010 procedure were one in 10,000.
In short, we find that the jury's verdict was supported by evidence that was reasonable, credible, and of solid value.
Rosner also contends the special verdict form should have included questions that would have addressed plaintiffs' different negligence theories.
The special verdict form used in this case properly required the jury to make findings only as to ultimate facts for plaintiffs' sole cause of action. Including questions that separately addressed each of plaintiffs' theories of negligence would have required the jury to decide evidentiary facts, in contravention of section 624.
Rosner's reliance on Valentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467 [81 Cal.Rptr.2d 252] is misplaced. In Valentine, the Court of Appeal held that it was proper to pinpoint the plaintiffs' distinct negligence theories even though there was only a single cause of action, but it did so only because of exceptional circumstances — there had already been two trials and two verdicts: "This was a case calling for special verdicts that would pinpoint the jury's fact finding and enable judgment to be entered rather than prolonging litigation with a possible third trial." (Id. at p. 1488.)
Rosner contends he was entitled to a new trial because the special verdict was hopelessly ambiguous, in that the jury concluded both that Cedars's
The trial judge instructed the jury: "I will give you a verdict form with questions you must answer. I've already instructed you on the law that you are to use in answering these questions. You must follow my instructions and the form carefully. You must consider each question separately. [¶] Although you may discuss the evidence and the issues to be decided in any order, you must answer the questions on the verdict form in the order they appear. After you answer a question, the form tells [you what] to do next."
Question 6 on the verdict form asked: "Was Howard Rosner, M.D.'s negligence a substantial factor in causing harm to Michael Markow?" The jury answered yes. Question 8 on the verdict form asked: "Was Nirmala Thejomurthy, M.D.'s negligence a substantial factor in causing harm to Michael Markow?" The jury did not answer this question, having found that Dr. Thejomurthy was not negligent in the first place. Question 10 on the verdict form asked: "Was Cedars-Sinai Medical Center's negligence a substantial factor in causing harm to Michael Markow?" The jury answered no.
Question 16 on the verdict form was preceded by the following direction: "If the jury found more than one defendant liable for Plaintiffs' injuries, i.e. the jury previously answered yes to more than one of these questions: 6, 8, and 10, answer the following, for each defendant(s) that the jury found to be
Cedars's liability (as found by the jury) was based on ostensible agency, not comparative fault. The jury's allocation of any percentage of fault to Cedars was therefore improper, as well as contrary to the court's directions on the special verdict form. This does not mean, however, that the verdict was hopelessly ambiguous and a new trial was required. A similar claim was made and rejected on very similar facts in Miller v. Stouffer (1992) 9 Cal.App.4th 70 [11 Cal.Rptr.2d 454], in which a jury acted on its own initiative to allocate fault between the driver of a vehicle that struck a pedestrian and the driver's employer, who also owned the car. The jury had found that the driver acted negligently and was acting within the course and scope of her employment when she struck the plaintiff. (Id. at pp. 75-76.) On appeal the employer contended that the verdict was "`hopelessly ambiguous'" because even though "there was no claim of fault or direct liability against" her, "the jury allocated 40 percent of the negligence to her and also found her vicariously liable for the accident." (Id. at p. 86.) The court rejected her contention, explaining that because the trial court granted the plaintiff's "motion for JNOV and allocated 100 percent of the liability for negligence to [the employee], making [the employer's] liability purely vicarious," there was no ambiguity warranting retrial. (Ibid.) Here, too, the trial court eliminated the ambiguity by giving effect to the jury's ostensible agency finding and striking the jury's improper allocation of fault.
Rosner principally relies on Scott v. C. R. Bard, Inc. (2014) 231 Cal.App.4th 763 [180 Cal.Rptr.3d 479] and Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287
Accordingly, we hold that the trial court was not required to grant a new trial, but instead acted properly to eliminate the ambiguity or inconsistency by striking the jury's apportionment of fault.
The jury awarded Markow $4.5 million for future economic loss, which included $1.3 million for the cost of future hospitalizations. Rosner contends he is entitled to a new trial on plaintiffs' future economic damages because the jury's award for future hospitalizations is excessive, in that "plaintiffs' expert did not consider amounts actually paid for hospitalization."
"`Whether a plaintiff "is entitled to a particular measure of damages is a question of law subject to de novo review. [Citations.] The amount of damages, on the other hand, is a fact question ... [and] an award of damages will not be disturbed if it is supported by substantial evidence."'" (Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1324 [188 Cal.Rptr.3d 820] (Bermudez).)
The jury in this case was properly instructed with CACI No. 3903A, which directs the jury to determine "the reasonable cost of reasonably necessary medical care that [Markow] is reasonably certain to need in the future." (See Civ. Code, §§ 3283 [damages may be awarded for "detriment ... certain to result in the future"], 3359 ["[d]amages must, in all cases, be reasonable"]; Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1330 [156 Cal.Rptr.3d 347].)
Plaintiffs' life-care planning expert,
In his motion for a new trial and on appeal, Rosner argues that the jury's award of $1.3 million is excessive, that the jury should have applied the 12.9 percent reimbursement rate from that one hospital stay, not the 50 to 75 percent offered by West. If the jury had utilized the 12.9 percent rate, the award for future hospitalizations would have been reduced to $260,000.
Substantial evidence supports the jury's award. While West acknowledged that in one instance a hospital accepted a reimbursement rate much lower than 50 to 75 percent, she also testified that reimbursement rates vary and that there is no one "across-the-board, set percentage." West testified that she has been doing life care planning for almost seven years. In addition to her experience as a life-care planner, she has a bachelor's degree in critical care nursing, and a master's degree in business administration with a specialty in health care management; she is also a certified hemodialysis nurse and is licensed as both an R.N. and a public health nurse. The jury could reasonably find West's testimony on the reimbursement rate to be credible. Accordingly, we find that substantial evidence supports the jury's award of future economic damages.
More than six months before trial, plaintiffs jointly served Rosner with a single offer to compromise their claims for $999,999.99 pursuant to section 998. The offer did not allocate the settlement funds between Markow and his wife. Moreover, the offer was conditioned on the accuracy of Rosner's representation that he had only $1 million in insurance coverage for plaintiffs' claims. Because Rosner rejected this offer and plaintiffs were awarded more than $1 million, they sought to recover section 998 costs from Rosner. Rosner moved to strike plaintiffs' costs claim on the ground the settlement offer was invalid because it was joint and conditional. The trial court denied the motion. Rosner contends that the trial court erred by denying his motion.
The interpretation and applicability of a statute is a question of law, which we review de novo. (Barella v. Exchange Bank (2000) 84 Cal.App.4th 793, 797 [101 Cal.Rptr.2d 167] (Barella).) "In interpreting section 998, this court has placed squarely on the offering party the burden of demonstrating that the offer is a valid one under section 998." (Barella, at p. 799.)
Rosner's argument that plaintiffs' joint section 998 offer is invalid is based on the language of section 998, subdivision (d): "If an offer made by a plaintiff is not accepted...." (Italics added.)
Similarly, joint section 998 offers by multiple plaintiffs were held to be valid in Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 630 [34 Cal.Rptr.2d 26]; Stallman v. Bell (1991) 235 Cal.App.3d 740, 747 [286 Cal.Rptr. 755]; and Fortman, supra, 211 Cal.App.3d at page 263.
The joint offer in this case did not preclude a determination of whether plaintiffs received a more favorable judgment. Plaintiffs offered to settle the case for just under $1 million, yet the jury awarded them $5.2 million. Thus, it is clear that plaintiffs were awarded far more than they would have received from their joint settlement offer. Moreover, as held in Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380, 1394 [273 Cal.Rptr. 231], and noted in Deocampo, supra, 101 Cal.App.4th at page 777, the spouse could recover a maximum of $250,000 on her loss of consortium claim pursuant to Civil Code section 3333.2. This statutory limit provided a further guideline for assessing the certainty and validity of plaintiffs' offer to compromise. Accordingly, we hold that their section 998 offer was not invalid because it was jointly made.
Rosner also argues that the section 998 offer was invalid because it was conditioned on the accuracy of Rosner's disclosures regarding his insurance coverage for plaintiffs' claims.
The cases Rosner relies upon are distinguishable in that none of them involved an offer to compromise conditioned on the accuracy of the offeree's discovery responses. (See Menees v. Andrews (2004) 122 Cal.App.4th 1540, 1543-1546 [19 Cal.Rptr.3d 664] [defense offer conditioned on acceptance by all plaintiffs invalid]; Fassberg, supra, 152 Cal.App.4th at pp. 765-767 [offer conditioned on releases by, and releases of claims against "`a long list of other possible, ill-defined third parties'" not overbroad or incapable of valuation absent indication such parties possessed valid claim]; Barella, supra, 84 Cal.App.4th at p. 801 [offer conditioned on confidentiality invalid in defamation action].)
Accordingly, the trial court properly awarded plaintiffs section 998 costs.
The judgment is affirmed with respect to Rosner and reversed with respect to Cedars-Sinai. Plaintiffs are awarded costs with respect to Rosner's appeal. Cedars-Sinai is awarded costs with respect to its appeal.
Rothschild, P. J., concurred.
JOHNSON, J., Dissenting and Concurring. —
With regard to the ostensible agency issue, I respectfully dissent. As to all other issues, I join the majority.
The majority's discussion of the ostensible agency issue is remarkable less for what it says, than for how it cobbles together its justification for the remarkable conclusion it reaches.
In the very last paragraph of its discussion of the ostensible agency issue, the majority comes finally to the applicable standard of review, treating this
According to the majority, de novo review is required because "all of the facts essential to the issue of ostensible agency were undisputed" and, as a result, the appeal by Cedars-Sinai Medical Center (Cedars) "`raises purely legal questions.'" (Maj. opn. ante, at p. 1045.) The majority bases its conclusion on Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448 [122 Cal.Rptr.2d 233] (Mejia). I believe that the majority is mistaken and its reliance on Mejia misplaced.
It is not correct that all of the facts essential to a determination of the ostensible agency issue were undisputed. While it was undisputed, for example, that Michael Markow (Markow) signed various conditions of admission and that Markow relied on the Cedars website and the location of Howard Rosner's (Rosner) office in a Cedars building to conclude that the disclaimer in the conditions of admission did not apply to Rosner, the reasonableness of Markow's belief in an agency relationship between Rosner and Cedars was hotly contested. Indeed, that very issue loomed as one of the core factual disputes that the jury had to resolve. Moreover, the trial court asked the jury to resolve the reasonableness of Markow's belief, not on an objective "reasonable person" standard, but on a subjective standard — that is, the jury had to determine whether, given Markow's own knowledge and experience, his belief was reasonable.
Here, as discussed more below, the jury, by an 11-to-one vote, found that Markow's belief about Rosner being Cedars's agent was neither irrational nor unreasonable — but in fact, reasonable. Consequently, the majority's claim that "all of the facts essential to the issue of ostensible agency were undisputed"
Mejia, supra, 99 Cal.App.4th 1448, on which the majority relies (maj. opn. ante, p. 1045), does not hold that the reasonableness of a patient's belief about an alleged ostensible agency relationship is always determined as a question of law. Mejia simply held that "[u]nless the evidence conclusively indicates that the patient should have known that the treating physician was not the hospital's agent, ..., the issue of ostensible agency must be left to the trier of fact."
In short, facts are "`undisputed'" for purposes of de novo review if they are "`settled'" or "`not open to dispute or question.'" (Adoption of Arthur M. (2007) 149 Cal.App.4th 704, 717 [57 Cal.Rptr.3d 259].) Here, a critical fact for resolution of the ostensible agency issue — the reasonableness of Markow's belief in an agency relationship between Rosner and Cedars — was not settled, but disputed, questioned and resolved by the trier of fact in Markow's favor. Because Cedars's appeal concerns a disputed issue of fact, it does not raise a pure question of law that would allow the majority to disregard the jury's factual findings and determine the issue independently. Instead, the ostensible agency issue must be reviewed under a different standard.
Cedars appeals from the denial of its motion for judgment notwithstanding the verdict (JNOV). "[W]hen reviewing a ruling on a motion for JNOV, `an appellate court will use the same standard the trial court uses in ruling on the
Under the substantial evidence standard, our appellate review begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the jury's factual determinations. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874 [197 Cal.Rptr. 925]; Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1489 [21 Cal.Rptr.3d 36].) "`Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact....'" (Jonkey v. Carignan Construction Co. (2006) 139 Cal.App.4th 20, 24 [42 Cal.Rptr.3d 399], italics added.) "The term `substantial evidence' means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value." (In re J.K. (2009) 174 Cal.App.4th 1426, 1433 [95 Cal.Rptr.3d 235].)
Although the majority correctly observes that the issue of ostensible agency, at its most elemental level, is an issue about notice (maj. opn. ante, p. 1038), they fail to acknowledge that whether notice is sufficient to inform a party about a fact is not a question of law for this court to decide, but a question of fact for the jury to decide. As our Supreme Court noted long ago, "whether notice was given or not, and if given, whether defendant understood it, and it was sufficient to put him on his guard, or, in the language of the code, to put a prudent man upon inquiry [citation], [are] questions of fact for the jury...." (Renton, Holmes, & Co. v. Monnier (1888) 77 Cal. 449, 456 [19 P. 820].)
While the majority acknowledges that the jury ruled in favor of Markow and his wife, Francine Markow (collectively the Markows) on the issue of ostensible agency, they fail to note just how lopsided the votes were against Cedars. This lopsidedness is noteworthy because it demonstrates the jury's own view that substantial evidence supported its findings. On the issue of ostensible agency, the jury found as follows: (a) Cedars intentionally or
By choosing to ignore these touchstone principles and facts, the majority has become a second and self-appointed trier of fact — a role which appellate judges should shun. For example, the majority states that "any inference of agency or employment arising from Rosner's status as director of the pain clinic was negated by the unambiguous and prominent disclaimer Markow repeatedly initialed." (Maj. opn. ante, at p. 1044.) This statement begs the question of who decided that the disclosure "negated" Rosner's status. Not the jury. They sat and listened to all of the evidence and decided in a decisive manner that the disclosures did not negate Rosner's status. Instead of focusing on facts that support the verdict and then determining whether they are "substantial," the majority highlights facts supporting the verdict that Cedars sought but the jury decisively rejected.
The majority, quite properly, looks at the language of the various conditions of admission forms regarding the independent contractor status of physicians. (Maj. opn. ante, pp. 1039-1040.) But that is both the beginning and the end of the majority's analysis. The majority decision does not consider what the forms do not say, and, perhaps more critically, what was the trial testimony about these forms.
The majority ignores the fact that none of the conditions of admissions says anything about dual status physicians — that is, physicians who not only practice at Cedars, but also run administrative units of the hospital, such as the pain management clinic. Importantly, California courts have held that the director of a hospital's administrative unit "may be an agent of the hospital." (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 104 [11 Cal.Rptr.2d 468] (Jacoves).) In Jacoves, the parents of a young man who had committed suicide sued the hospital; the decedent had received treatment at
Here, the jury, after hearing all of the evidence, not only found that Markow reasonably believed that Rosner was Cedar's agent but it did so, not by a narrowly divided vote, but by a nearly unanimous vote of 11 to one.
In addition, courts applying California law have held that, where a conditions of admission form, such as the ones at issue in this case, is arguably ambiguous over who is and is not an independent contractor, the issue of ostensible agency cannot be determined as a matter of law. (Romar v. Fresno Community Hosp. and Medical Center (E.D.Cal., Mar. 21, 2007, No. CIV F 03-6668 AWI SMS) 2007 U.S.Dist. Lexis 25927, *6, *44 (Romar).) In Romar, when her minor daughter fell ill due to a bacterial infection, the minor's mother sought repeated treatment at a hospital's emergency room. On each occasion, the mother signed conditions of admission forms that, inter alia, provided that "[a]ll physicians and surgeons ... are independent contractors with the patient and are not employees or agents of the hospital." (Id. at p. *6.) After the minor suffered permanent injury due to the inability of the hospital's medical staff to stem the spread of the infection, the minor, through her mother, sued for malpractice. The court granted the treating doctor summary judgment because there was insufficient evidence that he had breached the standard of care. (Id. at p. *47.) With regard to the physician assistants and nurse practioners who treated the minor, the hospital, relying on the conditions of admission form, moved for summary judgment. The court denied the hospital's motion, reasoning that "there is an ambiguity whether the Conditions Form reasonably informs patients that nurse practitioners and physician assistants are not employees or agents of [the hospital]. Given the language of the notice in the Conditions Form, the Court cannot say as a matter of law that [plaintiffs] knew or should have known that the nurse practitioners and physician assistants were not agents or employees of [the hospital]." (Id. at p. *54.)
As established by Jacoves, supra, 9 Cal.App.4th 88, and Romar, supra, 2007 U.S.Dist. Lexis 25927, Cedars created an issue of fact when it drafted
The majority ignores the testimony at trial about the conditions of admissions. Tellingly, Cedars offered no testimony about its own forms. The only testimony at trial about these forms came from Markow. With regard to the independent contractor disclosure, Markow believed that it 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." In other words, Markow thought that because Rosner had an office at Cedars and oversaw a department at Cedars, he was a "full-time employee" of the hospital. Other testimony at trial corroborated the reasonableness of Markow's interpretation of the forms. At trial, Vera Dae Borce, who had worked at Cedar's pain center for approximately 14 years, testified that she herself believed that Rosner worked for Cedars and she had never heard of Rosner's actual employer, GASP. From the jury's nearly unanimous vote on the issue of the reasonableness of Markow's interpretation, we know that the jury found such testimony to be not just credible, but compelling.
Two other sets of undisputed facts undeniably bolstered Markow's credibility on the issue of Rosner's ostensible agency. First, Rosner held himself out to the public as being affiliated with Cedars, not GASP. For example, although Rosner had been issued with GASP business cards, he did not use
Van Horn v. Hornbeak (E.D.Cal., Feb. 17, 2010, No. CV F 08-1622 LJO DLB) 2010 U.S.Dist. Lexis 14321, illustrates how written disclosures, such as the conditions of admission, do not establish notice conclusively or as a
Here, the Markows' statements of belief regarding Rosner's status as an agent of Cedars are credible, with arguably more basis than the ones at issue in Van Horn v. Hornbeak, supra, 2010 U.S.Dist. Lexis 14321. The Markows' belief was rooted in tangible indicators of Rosner's status as an agent of Cedars, such as the location of his office in a Cedars building, and the description of Rosner on the Cedars website as the medical director of its pain center with no mention whatsoever of Rosner's actual employer, GASP. As noted above, the Markows' belief was shared by longtime Cedars employees.
The majority, relying on language in Mejia, supra, 99 Cal.App.4th 1448, concludes that the ostensible agency doctrine is inapplicable to the Markows because once Rosner began treating Markow he became one of Markow's personal physicians. (Maj. opn. ante, at p. 1041.) Such a contention lacks merit because it is a plausible, but unproven, construct only — that is, it is not rooted in any evidence, just logical inferences. The majority, in other words, ignores the undisputed testimony at trial and instead attempts to generate its own evidence to support its disregard for the jury's factual findings. For example, the majority stresses that "Cedars did not assign Rosner to treat Markow; Markow chose Rosner." (Maj. opn. ante, at p. 1041, italics omitted.) While that is partially true (although Cedars did not assign Markow to
The value that the Markows put on Cedars is also captured by Francine Markow's testimony. She was in favor of her husband being treated by Rosner because Rosner was at Cedars, a place where they would get the "best possible care, the best possible staff, the best possible doctors, equipment, etc.; we always felt that way." As she explained to the jury, using Cedars was important to her husband because "he always wanted to see someone who was affiliated with a major medical hospital, preferably even a teaching hospital because we have been told years ago that those are the best." Francine Markow's faith in Cedars proved almost unshakeable — even as her husband was developing the paralysis that would lead to his quadriplegia, she did not, despite the obvious medical emergency and the possibility of a 90-minute drive, consider going to another, closer hospital.
The majority concludes that "the jury's ostensible agency finding is contrary to law." (Maj. opn. ante, at p. 1044.) The majority's conclusion, however, is unsupported by any case law. The majority does not rely upon a single case decided in a nonemergency setting which holds that boilerplate conditions of admission forms "conclusively" establish as a matter of law that an ostensible agency relationship does not exist between a hospital and one of its doctors, let alone when the doctor at issue is also the director of a large
Although Mejia, supra, 99 Cal.App.4th 1448 was decided under different facts than those at issue here, the court explained in significant detail its thought process to insure that California law on the issue of ostensible agency "should be interpreted consistent[] with the national trend." (Id. at p. 1457.) As Mejia explained, the national trend is squarely in favor of factual findings in favor of an ostensible agency relationship: "`The conception that the hospital does not undertake to treat the patient, does not undertake to act through its doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no longer reflects the fact. Present-day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses and internes [sic], as well as administrative and manual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legal action. Certainly, the person who avails himself of "hospital facilities" expects that the hospital will attempt to cure him, not that its nurses or other employees will act on their own responsibility.'" (Id. at p. 1453.) In view of this modern reality, the Mejia court observed that "the overwhelming majority of jurisdictions employ[] ostensible or apparent agency to impose liability on hospitals for the negligence of independent contractor physicians." (Ibid.)
Given the absence of any supporting authority, and given that the cases upon which it does rely are contrary to its position, it is the majority who finds itself in a position that is contrary to the law.
In sum, our role as a reviewing court in this instance is quite limited. We are to determine merely if the jury's ostensible agency findings were supported by substantial evidence. Our job is not to ignore or supplant the jury and decide the case as we believe it should have been decided. Yet that is exactly what the majority has done.
To establish ostensible agency liability against Cedars for the alleged malpractice of Rosner, the Markows needed to establish just two things: "(1)
After hearing 12 days of evidence and argument, and after deliberating over the course of four additional days, the jury found, and decisively so, that there was conduct by Cedars (either intentional or negligent) that created the impression that Rosner was its agent (12 to zero) and that Markow reasonably relied on that apparent agency relationship between Rosner and Cedars (11 to one). Evidence, in the principal form of uncontroverted trial testimony by the Markows, Rosner, and others, supported the jury's unanimous and near-unanimous findings. Instead of looking to that evidence to see if it was truly substantial (as it is required to do by the applicable standard of review), the majority simply ignores it. Instead, the majority has reweighed the evidence, and has supplanted the jury's decision about what was credible and what was not, what was important and what was not, and what was clear and what was ambiguous, with its own findings. That decision contradicts the applicable law as well as facts established at trial.
Because a patient is "generally presumed to have looked to the hospital for care," and because "ostensible agency is readily inferred" (Mejia, supra, 99 Cal.App.4th at pp. 1454-1455, italics added), a hospital's written disclaimer of agency, such as Cedars's conditions of admission, simply negates the inference of agency and compels the plaintiff-patient to present facts establishing that he or she had reason not to understand the disclaimer and/or appreciate its significance and/or that the hospital, by other actions or inactions, gave the patient grounds to believe reasonably that the physician was an agent of the hospital. "[T]he mere existence of a boilerplate admissions form is not sufficient to `conclusively indicate[] that [the patient] should have known that the treating physician was not the hospital's agent....'" (Whitlow v. Rideout Memorial Hospital, supra, 237 Cal.App.4th at p. 640, italics added.) In other words, the existence of a written disclaimer, such as Cedars's conditions of admission, does not end the factual inquiry into ostensible agency; it begins it.
Here, the Markows did what they needed to do — they presented evidence that Cedars held Rosner out as its agent and that they reasonably believed Rosner was Cedars's agent — and the jury found that evidence compellingly persuasive. Because substantial evidence supported the jury's factual determinations on the issue of ostensible agency, the trial court properly denied Cedars's motions for judgment notwithstanding the verdict and for a new trial.
First, the business cards and stationery that Cedars provided to Rosner, and which Rosner used, go to the threshold issue of whether Cedars held Rosner out to the world, including the Markows, as one of its agents — in other words, this evidence goes to Cedars's conduct, not the reasonableness of Markow's beliefs. That the jury found by a unanimous vote that Cedars intentionally or carelessly created the impression that Rosner was its agent suggests that the jury regarded the business cards and stationery as probative on the issue of Cedars's conduct.
Second, whether Markow saw the business cards or the stationery is irrelevant, because he did see and he did rely upon Cedars's website, which described Rosner as the director of its pain management clinic and which said nothing whatsoever about Rosner's employment by GASP and GASP alone, and he did rely on the fact that Rosner was officed in a building plainly and prominently marked as a Cedars building. By finding (11 to one) that Markow reasonably believed Rosner was Cedars's agent, the jury implicitly but necessarily and decisively found that Markow's reliance on the website's disclosures and the location of Rosner's office was sufficient for ostensible agency purposes — that is, Markow did not need to testify that he saw or relied upon the Cedars-supplied business cards or stationery.
Third, by focusing on the fact that Markow did not see or rely on the Cedars-supplied business cards and stationery, the majority is doing precisely what it should not do: combing the record for evidence that does not support the verdict. As discussed above, what the majority should be doing instead is reviewing the record in a way that is "`most favorabl[e]'" to the Markows and then determining whether "`"`"any substantial evidence, or reasonable inferences to be drawn therefrom"'"'" supports the jury's factual determination that Rosner was the ostensible agent of Cedars. (Pacific Corporate Group Holdings, LLC v. Keck, supra, 232 Cal.App.4th at p. 309, italics added.)
