Brochner v. Western Insurance Co.

Dr. Ruben Brochner (defendant) performed brain surgeries at a hospital that repeatedly warned him, based on pathology results showing many of his removed tissue samples were actually normal, that he should get outside pathology consultations before operating. He didn't, and in 1968 patient Esther Cortez was injured by one of his surgeries; she sued both Brochner and the hospital, alleging the hospital knew of his incompetence but let him keep operating anyway. Cortez settled with the hospital for $150,000 and separately with Brochner. The hospital and its insurer, Western Insurance Company (Western) (plaintiffs), then sued Brochner for full indemnity, arguing his negligence was the primary cause of Cortez's injuries while the hospital's was merely secondary. The trial court agreed and awarded Western the full $150,000 plus attorney's fees under common-law indemnity principles, and the court of appeals affirmed.