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Ruiz v. Podolsky

August 23, 2010


Ct.App. 4/3 G040843 Orange County Super. Ct. No. 07CC08001, Judge: James Di Cesare.

The opinion of the court was delivered by: Moreno, J.

For over 30 years, courts have been grappling with the following issue, appearing in various factual scenarios: when a person seeking medical care contracts with a health care provider to resolve all medical malpractice claims through arbitration, does that agreement apply to the resolution of wrongful death claims, when the claimants are not themselves signatory to the arbitration agreement? To resolve this issue, we must consider on the one hand the fact that wrongful death claims in the state are not derivative claims but are independent actions accruing to a decedent's heirs, as well as the fact that generally arbitration can be compelled only when a party has consented to the arbitration. On the other hand, we must address Code of Civil Procedure section 1295,*fn1 which as explained below, contemplates that all medical malpractice claims, including wrongful death claims, may be subject to arbitration agreements between a health care provider and the patient.

We hold that all wrongful death claimants are bound by arbitration agreements entered into pursuant to section 1295, at least when, as here, the language of the agreement manifests an intent to bind these claimants. This holding carries out the intent of the Legislature that enacted section 1295 and related statutes.


The facts of this case relevant to this opinion are not in dispute. Rafael Ruiz attended an appointment at the office of Dr. Anatol Podolsky, an orthopedic surgeon, on July 17, 2006, about the treatment of a fractured hip. On the same day, they both signed a "Physician-Patient Arbitration Agreement." The agreement provided for the arbitration of any malpractice claims, consistent with the language of section 1295, further described below. The agreement further provided that it was the intention of the parties "that this agreement binds all parties whose claims may arise out of or relate to treatment or service 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 the claim." Elsewhere the agreement specifically provided for arbitration of wrongful death and loss of consortium claims.

Ruiz died on July 25, 2006. In July 2007, Alejandra Ruiz (the Wife) and the four adult children, Alejandro, Ana, Diana, and Samuel (collectively referred to as the adult children) filed an action against Podolsky, and other health care providers (who are not parties to this appeal), alleging claims for medical malpractice and wrongful death. They maintained that Podolsky and the other named 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. The 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 that the adult children were "swept up" into the arbitration agreement along with the 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 the Wife. The court stayed the "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. The Wife did not appeal.

The Court of Appeal concluded that the Wife was bound by the arbitration agreement through principles of equitable estoppel and invited error. Nonetheless, it concluded the trial court was correct to deny the petition to compel arbitration as to the adult children. It concluded that because the adult children had not consented to the arbitration, they were not now required to arbitrate. Nor did the Court of Appeal find any reason for compelling the adult children to arbitrate their claims simply because the Wife was so compelled. We granted review.


Because the case requires us in some sense to reconcile the special health care arbitration statute with the wrongful death statute, we begin with a review of these two statutes.

A. Section 1295

Section 1295, subdivision (a) provides: "Any contract for medical services which contains a provision for arbitration of any dispute as to professional negligence of a health care provider shall have such provision as the first article of the contract and shall be expressed in the following language: 'It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently or incompetently rendered, will be determined by submission to arbitration as provided by California law, and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. 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, and instead are accepting the use of arbitration.' " (Italics added.)

Subdivision (b) of the same statute states: "Immediately before the signature line provided for the individual contracting for the medical services must appear the following in at least 10-point bold red type:


As we stated in Reigelsperger v. Siller (2007) 40 Cal.4th 574, 577-578 (Reigelsperger): "Section 1295 was enacted as part of the Medical Injury Compensation Reform Act of 1975 (MICRA). (Stats. 1975, 2nd Ex. Sess. 1975-1976, ch. 1, § 26.6, pp. 3975-3976.) MICRA was a response to a perceived crisis regarding the availability of medical malpractice insurance. 'The problem... arose when the insurance companies which issued virtually all of the medical malpractice insurance policies in California determined that the costs of affording such coverage were so high that they would no longer continue to provide such coverage as they had in the past. Some of the insurers withdrew from the medical malpractice field entirely, while others raised the premiums which they charged to doctors and hospitals to what were frequently referred to as "skyrocketing" rates. As a consequence, many doctors decided either to stop providing medical care with respect to certain high risk procedures or treatment, to terminate their practice in this state altogether, or to "go bare," i.e., to practice without malpractice insurance. The result was that in parts of the state medical care was not fully available, and patients who were treated by uninsured doctors faced the prospect of obtaining only unenforceable judgments if they should suffer serious injury as a result of malpractice.' [Citation.] [¶] The purpose of section 1295 is to encourage and facilitate arbitration of medical malpractice disputes. [Citations.] Accordingly, the provisions of section 1295 are to be construed liberally." In other words, the encouragement of arbitration " 'as a speedy and relatively inexpensive means of dispute resolution' " (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9) furthers MICRA's goal of reducing costs in the resolution of malpractice claims and therefore malpractice insurance premiums.

Because section 1295, subdivision (a) contemplates arbitration agreements to resolve disputes concerning "professional negligence," the definition of that term is particularly critical to the understanding of this case. "Professional negligence" is defined in section 1295, subdivision (g)(2) as "a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital." (Italics added.)

B. The Wrongful Death Statute

Section 377.60 authorizes a wrongful death action by specified persons including the decedent's spouse and children. "Unlike some jurisdictions wherein wrongful death actions are derivative, Code of Civil Procedure section 377.60 'creates a new cause of action in favor of the heirs as beneficiaries, based upon their own independent pecuniary injury suffered by loss of a relative, and distinct from any the deceased might have maintained had he survived. [Citations.]' " (Horwich v. Superior Court (1999) 21 Cal.4th 272, 283, italics omitted (Horwich).)

As was stated in San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1551, any wrongful death recovery "is in the form of a lump sum verdict determined according to each heir's separate interest in the decedent's life [citation], with each heir required to prove his or her own individual loss in order to share in the verdict. (ยง 377.61; [citation].) Because a wrongful death action compensates an heir for his or her own independent pecuniary losses, it is one for 'personal injury to the heir.' [Citations.] Thus, in a ...

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