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Ruiz v. Podolsky

June 24, 2009


Appeal from an order of the Superior Court of Orange County, James Di Cesare, Judge. Affirmed. (Super. Ct. No. 07CC08001).

The opinion of the court was delivered by: O'leary, J.



This appeal arises from the trial court‟s denial of a physician‟s petition to compel arbitration of the wrongful death action brought by the adult children heirs of his patient, Rafael Ruiz (Rafael).*fn1 Alejandra Ruiz (Wife) and the four adult children, Alejandro, Ana, Diana, and Samuel (collectively referred to as the Adult Children) filed an action against Anatol Podolsky, an orthopedic surgeon, and other health care providers (who are not parties to this appeal). Podolsky sought to enforce the arbitration agreement he had with Rafael against the surviving heirs. Wife conceded she was bound by the arbitration agreement, but she and the Adult Children argued the Adult Children were not bound to arbitrate, and the matter should remain in superior court to prevent conflicting rulings. The trial court granted the petition to compel arbitration as to Wife but denied the petition as to the Adult Children. On appeal, Podolsky argues Rafael had the broad authority to waive the Adult Children‟s right to a jury trial of their independent wrongful death claims simply because Rafael‟s spouse conceded she was bound to the agreement and the wrongful death statute requires litigation of the action in one forum.

In California, there is a split of authority as to the scope of a patient‟s authority to bind his or her spouse and adult children to an arbitration agreement. One line of cases beginning with Rhodes v. California Hospital Medical Center (1978) 76 Cal.App.3d 606 (Rhodes), holds wrongful death is not a derivative cause of action and therefore a patient cannot bind nonsignatory heirs bringing a wrongful death claim absent a pre-existing agency-type relationship. Another line of cases following Herbert v. Superior Court (1985) 169 Cal.App.3d 718 (Herbert), suggests there are important public policy reasons to infer patients being treated have the broad authority to bind nonsignatory heirs to a medical arbitration agreement, especially in cases of wrongful death.

Based on our review of the authority in California and other jurisdictions, we conclude California‟s wrongful death statute does not create a derivative action and therefore Rafael lacked authority (express or implied) to bind Wife or the Adult Children to the physician-patient arbitration agreement he signed simply to receive treatment for himself from Podolsky. Principles of equity and basic contract law outweigh the convenience of litigating in one forum and the public policies favoring arbitration. Accordingly, we hold the trial court correctly concluded the Adult Children cannot be compelled to arbitrate their wrongful death claims.

As for Wife, it appears she was not bound to the arbitration agreement, but she invited error on this issue in the trial court by conceding she must arbitrate her claim. This court cannot revisit the issue because Wife failed to appeal from the court‟s order compelling arbitration of her claim. Consequently, this case presents a unique legal quagmire. On one hand, the wrongful death statute ordinarily calls for "one action" to be jointly maintained by the heirs. On the other hand, Code of Civil Procedure section 1281.2, subdivision (c),*fn2 eliminates any discretion to disregard Wife‟s purported arbitration agreement with the health care provider, despite the possibility of inconsistent results inherent in litigating the same wrongful death action in two forums. Thus, we have a case in which Wife can be compelled to arbitrate her claim; the Adult Children cannot be forced to arbitrate their claims. The defendant ordinarily is given the protection of litigating in one forum; however, we conclude Podolsky has waived the protections offered by the statutorily created "one action rule" for wrongful death cases by filing his petition to compel arbitration, causing the lawsuit to be split into two forums. All may end well, but this is likely not the result Podolsky envisioned. He now risks the possibility of inconsistent results and additional expense by litigating the same claim in two forums. He has the option to waive his right to arbitrate Wife‟s claim or proceed. The decision is his, not ours. The order is affirmed.


In July 2007, Wife and the Adult Children filed a complaint against Podolsky and other health care professionals alleging wrongful death and medical malpractice. They maintained the defendants failed to adequately identify and treat Rafael‟s hip fracture resulting in complications, and eventually his death.

Podolsky filed an answer to the complaint, and attached a copy of the arbitration agreement he made with Rafael. A few months later, Podolsky filed a petition to compel arbitration. Wife conceded she was subject to the arbitration agreement. However, she and the other heirs argued that because only one plaintiff was bound to arbitrate, the court should allow the parties to proceed in the trial court to avoid inconsistent verdicts, unnecessary delay, multiple actions, and duplicative discovery. Podolsky responded the Adult Children were "swept up" into the arbitration agreement along with Wife due to the "one action rule" for wrongful death suits.

The trial court disagreed. It denied the petition as to the Adult Children, and granted the petition as to Wife. The court stayed the superior court "action pending resolution of arbitration to avoid the possibility of inconsistent rulings." It set a date by which arbitration must be completed and also scheduled a postarbitration status conference date. Podolsky appealed the order denying arbitration. Wife did not appeal.


A. Standard of Review

"There is no uniform standard of review for evaluating an order denying a motion to compel arbitration. [Citation.] If the [trial] court‟s order is based on a decision of fact, then [the reviewing court] adopt[s] a substantial evidence standard. [Citations.]

Alternatively, if the court‟s denial rests solely on a decision of law, then a de novo standard of review is employed. [Citations.]" (Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425.)

Like many physicians, it was Podolsky‟s practice to offer new patients an arbitration agreement to sign before being examined. Rafael signed the agreement when he went to Podolsky‟s office, he was not examined that day, but he was asked to return 10 days later. The agreement provided, in pertinent part, "It is the intention of the parties that this agreement bind all parties whose claims may arise out of or relate to the treatment or services provided by the physician including any spouse or heirs of the patient and any children, whether born or unborn, at the time of the occurrence giving rise to any claim." (Bold omitted.) The relevant facts and arbitration agreement‟s language are undisputed. Accordingly, we independently review the agreement‟s effect. (Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 684.)

B. General Law Regarding Wrongful Death-the One Action Rule

A wrongful death cause of action is a statutory claim (§§ 377.60-377.62).

"In some states, the decedent‟s right of action for his or her injuries survives, and the recovery goes to the decedent‟s estate. However, the usual statute creates a new cause of action in favor of the heirs as beneficiaries. [California‟s] current statute [(§ 377.60)]. . . lists specific persons entitled to sue for wrongful death . . . . The cause of action is based upon the plaintiffs‟ own independent pecuniary injury suffered by loss of the decedent, and is distinct from any action that the decedent might have maintained had he or she survived. [Citations.]" (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1378, pp. 798-799; Horwich v. Superior ...

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