ORIGINAL PROCEEDING; petition for writ of mandate. Patrick T. Madden, Judge. Petition granted. (Los Angeles County Super. Ct. No. VC050130).
The opinion of the court was delivered by: Jackson, J.
CERTIFIED FOR PUBLICATION
Petitioner Rion Alicia Newton Rodriguez (Rodriguez) seeks writ relief from an order of the Superior Court of Los Angeles County granting the petition to arbitrate brought by real parties in interest Sandy Witzling, M.D., individually, and Sandy Witzling, M.D., Inc. (collectively Witzling) and staying the action as to them. We grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Rodriguez is a minor born in August 1998 to her mother, Lee M. Newton (Newton). On October 17, 2006, four days prior to Newton's routine gallbladder surgery, she executed a Physician-Patient Arbitration Agreement (Arbitration Agreement) offered to her by real party in interest Sandy Witzling, M.D., in accordance with his custom and practice for all new patients.
The Arbitration Agreement included text as described in Code of Civil Procedure section 1295,*fn1 subdivisions (a), (b) and (c), applicable to agreements to arbitrate medical malpractice claims. The following provision appeared just above the signature line, in bold red type: ―NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL. SEE ARTICLE 1 OF THIS CONTRACT.‖ Article 1 stated that ―any dispute as to medical malpractice . . . will be determined by submission to arbitration as provided by California law . . . . Both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury . . . .‖ Article 2 of the Arbitration Agreement specified that it was the parties' intention that the agreement was binding on ―all parties,‖ including the patient's children, whose claims may arise out of or relate to the medical services to be provided. In Article 5, the Arbitration Agreement provided that it could be ―revoked by written notice delivered to the physician within 30 days of signature and if not revoked [the agreement would] govern all medical services received by the patient.‖*fn2
On October 21, 2006, Newton died during the recovery period, allegedly from a nick in her liver that Dr. Witzling made during the surgery. Rodriguez is the sole heir to Newton's estate. Guardians ad litem were appointed for her in January 2007. By and through her guardians ad litem, in January 2008, she filed a complaint alleging, inter alia, ―Medical Malpractice -- Wrongful Death‖ against Witzling and others.*fn3 In July, Witzling filed a petition requesting an order that the controversy be decided by arbitration. Rodriguez opposed the petition based, in part, on her assertion that to permit a physician whose malpractice was the alleged cause of the patient's death to enforce an arbitration agreement for which the statutory cooling-off period had not expired as of the time of the death would be inconsistent with the policy underlying section 1295 and against public policy requiring that waivers of the constitutional right to a jury trial be voluntary, knowing and intelligent. In reply, Witzling claimed that Rodriguez's guardian had legal standing to revoke the Arbitration Agreement and by failing to do so, the guardian waived the issue.
At the hearing on the motion on October 23, 2008, the trial court granted Witzling's petition and ordered a stay in proceedings as to Witzling only until arbitration was completed.*fn4 The court issued its written order on October 28, pursuant to which the court also retained jurisdiction to enforce the Arbitration Agreement and confirm the arbitration award.
Rodriguez asserts that, unless her petition is granted, she will be deprived of her constitutional right to a jury trial for the wrongful death of her mother. Rodriguez contends that the trial court's finding that she was bound by the Arbitration Agreement was erroneous because:
(1) The Arbitration Agreement was insufficient to deny her a jury trial, in that it failed to include a procedure for rescission if the patient died within the rescission period;
(2) Rodriguez has a constitutional right to a jury trial that was not knowingly, intelligently or voluntarily waived;
(3) Public policy cannot permit Witzling to benefit by limiting public access to his professional record as arbitration would permit, but ...