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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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Horvitz & Levy successfully defended the trial court’s decision that a doctor was not the ostensible agent of Horvitz & levy’s client, a hospital where the doctor performed open heart surgery, and the hospital therefore was not liable for the doctor’s malpractice

Kent Hagan briefly passed out while riding his bicycle and was transported by ambulance to the emergency room at Torrance Memorial Medical Center. While in the emergency room, he was given several forms to sign, including a form acknowledging that the doctors treating him were independent contractors, not hospital employees. Five days later Dr. John Stoneburner, a member of the hospital’s medical staff, performed open heart surgery on Mr. Hagan. The parties stipulated that Dr. Stoneburner was negligent and that his negligence caused Mr. Hagan’s death.

Mr. Hagan’s wife and son sued the hospital, claiming that Dr. Stoneburner was its ostensible agent because Mr. Hagan did not have adequate notice that the doctor was not the hospital’s employee and, moreover, did not have a meaningful opportunity to act on the information he was provided. The parties waived a jury and the trial court, sitting as the trier of fact, found that Mr. Hagan received adequate notice that the doctor was not the hospital’s employee and entered judgment for the hospital.

Horvitz & Levy was retained to represent the hospital on appeal. The California Court of Appeal (Second Appellate District, Division Seven), affirmed in an unpublished opinion, ruling that substantial evidence supported the trial court’s finding Mr. Hagan received adequate notice the doctor was not an hospital employee. The court refused to consider plaintiffs’ additional argument, raised for the first time on appeal, that the hospital had a nondelegable duty to provide medical care and therefore could not avoid liability for the doctor’s negligence, because plaintiffs had stipulated that if the trial court found in favor of the hospital on ostensible agency, judgment would be entered in the hospital’s favor.