Markow

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.

Undesignated statutory references are to the Code of Civil Procedure.

2 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 to15 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…

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.

1. The majority misstates the applicable standard of review

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 *1055 critical issue almost as a given. (Maj. opn. ante, at p. 1045.) But the applicable standard of review is not a given, but “the threshold issue” for every appeal. (Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, 611 [ 236 Cal.Rptr. 605 ].) The standard of review “is the compass that guides the appellate court to its decision. It defines and limits the course the court follows in arriving at its destination. Deviations from the path, whether it be one most or least traveled, leave writer and reader lost in the wilderness.” (People v. Jackson (2005) 128 Cal.App.4th 1009, 1018 [ 27 Cal.Rptr.3d 596 ].) In choosing an incorrect…

*1032 Opinion

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 (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…