Ruiz v. Podolsky

*855 KENNARD, J., Dissenting.

According to plaintiffs, defendant Anatol Podolsky, an orthopedic surgeon, negligently failed to diagnose and treat plaintiffs’ father for a hip fracture, thereby causing his death. Plaintiffs are not suing for the injury inflicted upon their father, rather, they are suing for the injury that defendant inflicted directly upon them when he negligently deprived them of their father’s companionship, care, and support. Plaintiffs never agreed to arbitrate these personal claims. The majority nevertheless holds that they must do so because their deceased father agreed on their behalf to arbitration, by signing a doctor-provided, preprinted form.

The portion of this form that refers to “heirs of the patient and any children” is written in fine print and buried in text that is laden with obscure legal terminology. More significant, the relevant language purports to relinquish the rights of persons who have not signed the agreement. The majority holds that the Legislature intended to allow patients to give up the jury trial rights of their family members by agreeing on their behalf to arbitration. The majority, however, has not cited a single statute stating or unambiguously implying any such rule. I disagree with the majority and would affirm the contrary holding of the Court of Appeal, which in turn affirmed the trial court.

I

Plaintiffs’ father, Rafael Ruiz, consulted orthopedic surgeon Anatol Podolsky about a hip fracture. At that time, Ruiz signed Podolsky’s preprinted form, agreeing to arbitrate “any dispute as to medical malpractice.” The form also warned that, by agreeing to arbitration, Ruiz and Podolsky were “giving up their constitutional right” to a jury trial. This warning is required by statute. (Code Civ. Proc., § 1295, subd. (a).) What follows this statutory warning is a lengthy text, written in small type, burdened with legal terms, and including an obscure provision binding Ruiz’s heirs to arbitrate any claims for wrongful death. By contrast, this same obscure provision expressly permits Podolsky to avoid arbitration and take fee disputes to court.

Eight days after the signing of the form, Ruiz died. Blood clots caused by the hip fracture had broken loose and lodged in his pulmonary arteries. Ruiz’s four adult children sued Podolsky for wrongful death, asserting that Podolsky had failed to adequately diagnose and treat the hip fracture. Relying on the arbitration agreement Ruiz had signed, Podolsky petitioned the trial court to compel arbitration. 1 The trial court denied the petition, concluding that Ruiz’s *856 children were not parties to the agreement, which therefore did not bind them. The Court of Appeal unanimously upheld that ruling.

II

Arbitration agreements in medical services contracts are governed by Code of Civil Procedure section 1295 (hereafter section 1295), which was enacted as part of the Medical Injury Compensation Reform Act of 1975 (MICRA). (Stats. 1975, 2d Ex. Sess. 1975-1976, ch. 1, § 26.6, pp. 3975-3976.) Although section 1295 approves the use of arbitration agreements, it also reflects the Legislature’s concern for protecting the rights of patients. It does so by requiring that certain warnings be set forth in the text of the agreement, one at the beginning and the other (in bold red type and capital letters) just before the signature line. Section 1295 does not mention heirs of the patient, much less discuss whether heirs may be compelled to arbitrate their claims. The majority nevertheless relies on this statute in concluding that a patient may agree on behalf of his or her heirs to arbitration of their wrongful death claims. The text of section 1295 suggests otherwise.

First, that statute requires that any arbitration agreement begin with an express warning stating that “[b]oth parties to [the] contract, by entering into it, are giving up their constitutional [jury trial] right. . . .” (§ 1295, subd. (a), italics added.) The “parties” referred to in this warning are obviously the physician and the patient. The warning says nothing about patients also giving up the rights of persons not signing the agreement. In addition, the express warning that must appear in bold red type immediately before the signature line provides that “ ‘BY SIGNING THIS CONTRACT YOU ARE AGREEING’ ” to neutral arbitration and “ ‘YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL.’ ” (Code Civ. Proc., § 1295, subd. (b), italics added.) Again, nothing in this warning informs the patient that he or she is giving up the rights of persons not signing the agreement.

Second, those express warnings to patients do not anywhere mention wrongful death actions by the patient’s heirs. The only reference in section 1295 to “wrongful death” appears not in the warnings that must be included in the text of the arbitration agreement and that the patient will therefore see, but in a definitions section of the statute that the patient could locate only by doing legal research. Specifically, subdivision (a) states that it governs agreements to arbitrate “professional negligence” disputes, and subdivision (g)(2) defines “professional negligence” as negligence of a health care provider that proximately causes “personal injury or wrongful death.” (§ 1295, subd. (g)(2), italics added.) The reason for this reference to wrongful death is *857 that the signatories to the arbitration agreement—the physician and the patient—remain bound by the agreement even if the physician’s alleged negligence leads to the patient’s death. In other words, the phrase “wrongful death” in section 1295, subdivision (g)(2), is used in its plain sense, simply to recognize the possibility that the injured patient might die. The phrase clarifies that the death of the patient will not extinguish the contractual obligation to arbitrate the patient’s own personal injury claim. Under California’s survival statute, such claims are “not lost by reason of the [patient’s] death.” 2 (Code Civ. Proc., § 377.20.) In my view, the phrase does not refer to wrongful death causes of action (see Code Civ. Proc., § 377.60) brought by persons who have not signed the arbitration agreement. Such persons seek to vindicate their own independent claims, not the patient’s personal injury claim. The majority nevertheless reads the statutory phrase as referring to wrongful death causes of action and concludes from that single ambiguous reference that a patient can agree on behalf of his or her heirs to arbitration of their wrongful death claims.

The majority’s conclusion raises serious constitutional questions. The majority reasons that this vicarious waiver of important rights is constitutional because when the Legislature creates a statutory right (such as the right to recover for wrongful death), it may place limits on that right. (Maj. opn., ante, at pp. 853-854.) But this reasoning assumes that the Legislature actually intends to place the limits, and therefore we should at least find a clear statement of that intent. Here, the only specific statutory language that the majority points to as evidence of the Legislature’s intent to permit the vicarious waiver of plaintiffs’ rights is the ambiguous and unelaborated reference to “wrongful death” in section 1295’s definition of “professional negligence.” The majority’s reasoning requires an implausible assumption. The majority assumes that, in crafting two detailed warnings to be included in the text of every medical services arbitration agreement, the Legislature omitted any mention that family members’ rights might be relinquished.

The majority also relies on MICRA’s purpose to rein in medical malpractice litigation costs (maj. opn., ante, at pp. 843, 850), concluding that “public policy” supports allowing “patients to bind their heirs to arbitrate wrongful death actions” (maj. opn., ante, at p. 852). The majority is correct about the general purpose of MICRA. (See Reigelsperger v. Siller (2007) 40 Cal.4th 574, 577-578 [ 53 Cal.Rptr.3d 887 , 150 P.3d 764 ].) Nevertheless, the Legislature chose to achieve this purpose by way of specified changes in the law. Those changes include the one at issue here, authorizing and regulating *858 arbitration agreements between physicians and their patients. Not every rule that might in some way limit medical malpractice litigation costs can be read into the statutory scheme, and a rule permitting arbitration agreements to bind a patient’s heirs was not among the changes the Legislature specified.

When parties have chosen to arbitrate instead of going to court, this court has held that the arbitrator’s decision is final and enforceable as to those parties because they have so agreed. (Berglund v. Arthroscopic & Laser Surgery Center of San Diego, L.P. (2008) 44 Cal.4th 528, 539 [ 79 Cal.Rptr.3d 370 , 187 P.3d 86 ] (Berglund).) Nevertheless, as this court has cautioned, “that policy does not extend to those who are not parties to the arbitration agreement and, by definition, have not consented to arbitration.” (Ibid., italics added.) Plaintiffs here were not parties to the arbitration agreement signed by their father. Not having consented, they are not bound.

Significantly, plaintiffs’ claim is not derivative of any claim that their deceased father had, as would be true of a claim prosecuted under the survival statute. (See Code Civ. Proc., § 377.20.) Plaintiffs’ wrongful death claim is independent, vindicating their own injuries, which arise from the effect that their father’s death had on them personally. (See Horwich v. Superior Court (1999) 21 Cal.4th 272, 283 [ 87 Cal.Rptr.2d 222 , 980 P.2d 927 ] [“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.]’ ”].) Specifically, plaintiffs seek to recover for the loss they suffered personally by being deprived of their father’s companionship, care, and support.

The majority asserts, “[I]f a spouse or adult children were permitted to litigate wrongful death or loss of consortium claims ‘the purpose of section 1295 would be defeated, for the patient would be compelled to arbitrate, but the physician would still have to answer in a civil suit for claims dependent on identical facts’ and . . . ‘[n]o savings would be effected.’ ” (Maj. opn., ante, at p. 851, quoting Mormile v. Sinclair (1994) 21 Cal.App.4th 1508, 1515 [ 26 Cal.Rptr.2d 725 ].) Although that may sometimes be true, the situation is by no means unusual. Often disputes involve multiple parties, only some of whom have agreed to arbitrate. (See Berglund, supra, 44 Cal.4th 528 .) That parallel proceedings might defeat some of the savings associated with arbitration has never been a reason to force arbitration upon parties that did not agree to it.

*859 III

For the reasons stated above, I dissent. I would affirm the Court of Appeal, which in turn affirmed the trial court.

Ruiz’s spouse, who was also a plaintiff in the lawsuit, did not dispute Podolsky’s contention that she was bound by the arbitration agreement.

If a plaintiff dies, his or her estate may prosecute the claim.