LIMITING THE SCOPE OF ARBITRATION CLAUSES IN MEDICAL MALPRACTICE DISPUTES

 

The Potential Loss of Affordable Health Care in California

 

  Weldon E. Havins, M.D., J.D.

         James Dalessio, J.D.

                 

 

 

“The health of the people is really the foundation upon which all their happiness and all their powers as a state depend.”  Benjamin Disraeli, Earl of Beaconsfield, Speech in the House of Commons [July 24, 1877].

 

During the Second Extraordinary Legislative Session in 1975, the California Legislator passed “emergency legislation” known as the Medical Injury Compensation Reform Act (“MICRA”) to create a statutory alternative dispute resolution mechanism for medical malpractice disputes.  MICRA arose as a result of, among other issues, the alleged “major health care crisis in the State of California attributable to skyrocketing malpractice premium costs and resulting in a potential breakdown of the health care delivery system . . . .”^[1] 

A central component of MICRA involved section 1295 of the California Code of Civil Procedure which, when contractually elected, requires medical malpractice disputes between patients and their doctors be resolved by private arbitration.^[2]  Through MICRA and its mandatory arbitration requirement, the Legislature sought to increase the availability of medical malpractice insurance and to decrease the frequency and costs of medical malpractice litigation.^[3]  At the same time, MICRA sought to ensure that those persons injured through the negligence of health care providers would be adequately compensated.^[4]  Thus, MICRA served two important public policies each of which, at times, could be considered mutually exclusive of the other.

As MICRA’s 25th silver anniversary draws near in Year 2000, the effectiveness of that Legislation as a means to achieving its laudable goals of ensuring affordable health care, on the one hand, and adequate compensation for injuries arising from the negligence of health care professionals, on the other hand, is threatened.  A prime example of MICRA in crisis is demonstrated by the current split of authority among the various appellate districts, and even within divisions of the same appellate district, over whether MICRA’s arbitration provisions apply to claims of non-signatories^[5] including, by way of example only, heirs of the signatory^[6].  To the extent courts disallow medical arbitration contracts, whether because an individual was not a party to the contract or because, for example, the validity of the arbitration agreement itself is at issue (e.g., lack of mutual assent, provisions within the agreement itself invalidating arbitration),^[7] the likelihood of continued, affordable health care coverage for all citizens in California is very much open to doubt. 

This Article critically analyzes the application of MICRA’s arbitration provision -- Code of Civil Procedure section 1295 -- on two main fronts.  First, this Article undertakes an extensive discussion of courts’ treatment of non-signatories of medical arbitration agreements and whether those persons are bound to arbitrate their medical malpractice disputes.  Second, this Article reviews court decisions where, under certain circumstances, arbitration provisions have been struck down.  Under either scenario, this Article contends that the narrowing of the scope of private arbitration provisions in medical service contracts threatens to undermine the strong public policies underlying MICRA. 

Part I and II of this Article review the creation of section 1295 and explain in detail its elements.  Part III discusses cases and controversies regarding binding non-signatory third parties including whether section 1295 applies to non-signatory spouses; heirs in wrongful death actions; unborn children; and from the other perspective, non-signatory physicians who treat patients. 

Part IV discusses and critically analyzes the law concerning invalidation of arbitration agreements including, among other issues, the absence of mutual assent; intentional or criminal conduct; contract terms disturbing finality; fraud in the inducement of arbitration contracts; and arbitrator neutrality.  Finally, Part V suggests a common rational approach to the treatment of arbitration clauses in medical malpractice disputes.  Because medical arbitration contracts ensure the continued viability of professional liability insurance to health care providers, protecting the best source of available funds to compensate victims of medical malpractice, it is this author’s opinion that courts should stringently enforce arbitration provisions absent extraordinary circumstances (e.g., fraudulent or criminal conduct).^[8]  In so doing, Californians may continue to receive affordable medical coverage well past the “golden anniversary” of MICRA, twenty five plus years from now.

                     

Part I.              THE EVOLUTION OF MICRA

 

California’s general arbitration statute dates back to 1927.^[9]  Codified in section 1280 of the Code of Civil Procedure, the statute has undergone only several rather minor changes.^[10]  The specific public policy favoring the use of arbitration as a means of resolving medical malpractice disputes finds its basis in legislation known as MICRA (Medical Injury Compensation Reform Act) of 1975.^[11]  Perhaps the greatest motivating factor compelling MICRA’s enactment was the 1973 U.S. Department of Health, Education and Welfare report warning of the “decreasing availability of medical malpractice insurance and the increasing frequency and costs of medical malpractice litigation.”^[12]  A portion of this report examined arbitration as a means of reducing costs and increasing the efficiency of processing medical malpractice actions. 

This report specifically enumerated several advantages of arbitration:

1.  Claims are handled more quickly.

2.  Witnesses and their legal counsel save time         during the dispute resolution process.

3.  Decisions are made by a sophisticated person.

4.  The setting is informal, and the technical          rules of evidence may be relaxed.

5.  The decision is final, with very limited            potential for appeal.

6.  The proceedings can be more easily conducted        without the emotional overtones and                 adversarial atmosphere of the courtroom.^[13]

 

While nothing is perfect, the report also enumerated were some possible faults of arbitration:

1.  It encourages small or nuisance lawsuits.

2.  It is often conducted by sophisticated, or          professional, people who may put greater value      on loss of income than a jury might.

3.  It may lead to more compromise judgments            rather than to clear definition of fault and        no fault.

4.  The private nature of the process protects          those at fault because it avoids the pressure       of publicity as a device for coercing               improvements in health care practices.^[14]

 

The California legislature considered this report during the Second Extraordinary Legislative Session called to ameliorate the professional medical liability insurance crisis in 1975.  The initial medical negligence reform bill, submitted on May 19, 1975 by Assemblyman Barry Keene, called for the formation of a “California Arbitration Commission on Medical Injury Compensation” which would be responsible for hearing any dispute as to medical malpractice.^[15]  The bill provided that either party could rescind the arbitration agreement within thirty days of signing the contract containing the arbitration clause.^[16]  This “cooling off” period evidently satisfied a sufficient number of medical arbitration resolution opponents who were concerned with the adhesive element of the proposed arbitration contract specifics.  

Governor Edmund G. (Pat) Brown signed the MICRA legislation in September 1975.  The final bill contained the “findings” of the legislature:

The Legislature finds and declares that there is a major health care crisis in the State of California attributable to skyrocketing malpractice premium costs and resulting in a potential breakdown of the health delivery system, severe hardships for the medically indigent, a denial of access for the economically marginal, and depletion of physicians such as to substantially worsen the quality of health care available to citizens of the state.  The Legislature, acting within the scope of its police powers, finds the statutory remedy herein provided is intended to provide an adequate and reasonable remedy within the limits of what the foregoing public health and safety considerations permit now and into the foreseeable future.^[17] (emphasis added)

 

Thus, MICRA’s purpose centered on averting the perceived health care crisis by ensuring the availability of affordable malpractice insurance. The availability of affordable malpractice insurance, in turn, ensured that California citizens injured through the negligence of health care providers would be adequately compensated. 

An important component of MICRA concerns section 1295 of the California Code of Civil Procedure which specifies provisions for patient - medical professional utilization of arbitration to resolve medical malpractice disputes.  The legislation, however, neither addressed the degree to which third party non-signatories would be bound to the arbitration clause provisions, nor the circumstances under which a party to contractual medical arbitration would not be bound to the terms of the arbitration clause.

 

Part II. MICRA’S DNA: SECTION 1295 AND THE MANDATORY ARBITRATION PROVISIONS

Section 1295 authorizes compulsory arbitration agreements in medical service contracts.  Section (a) provides that the agreement must be expressed in the first article of the contract and must use 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 or 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.^[18]

 

Immediately before the signature line the following must appear in at least ten point 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.^[19]

 

Once signed, the agreement governs all subsequent “open-book” account transactions for medical services until or unless rescinded by 30 days written notice.^[20]  Section (c) provides the agreement may be signed or rescinded by a legal guardian if the patient is incapacitated or a minor.^[21]  Section (e) provides that if sections (a) through (c) are completed, the contract is not one of adhesion, nor unconscionable, nor otherwise improper.^[22]

Provisions (a) through (e) concern an individual’s independent contract with a health care professional or provider.  However, because health care service plans are generally negotiated by an agent or fiduciary of the employer, the employee in essence never individually becomes a signatory of the contract containing the arbitration provision which binds the employee to arbitrate medical malpractice disputes.  Recognizing the practicalities of an employer contracting for health services of its employees, section 1295(f)specifies that the provisions of 1295 do not apply to an arbitration provision in a health care service plan.^[23]  Even prior to the enactment of C.C.P. section 1295, the California Supreme Court, in Doyle v. Guiliani,^[24] sustained the validity of contractual arbitration provisions in medical service plan contracts, at least when a health care service plan provider was a party.

The constitutionality of section 1295 has not been challenged, probably because arbitration agreements are so well established in contract law.  Indeed, section 1295 merely formally provides for arbitration agreements in medical service contracts, and codifies the strong public policy favoring arbitration as a means of resolving disputes, including disputes over medical malpractice claims.^[25]

The scope of the remedy in medical service contract arbitration agreements include remedies for intentional torts such as battery, as well as traditional remedies for professional negligence.^[26]  Arbitrators hearing cases under section 1295 are authorized to award punitive damages for injuries caused by conduct more egregious than mere negligence.^[27]  Claims arising outside the scope of medical services, such as sexual assault by an orderly, are not bound by the medical arbitration agreement provisions.^[28]

The California Supreme Court has been reticent to resolve ambiguities in the statute.  As discussed in the next Part of this Article, disagreements in interpretation among appellate courts, and even within divisions of the same appellate district, have occurred.  The areas of disagreement and inconsistency generally involve whether:

(1) a non-signatory spouse is bound to arbitration by the signatory spouse's arbitration agreement;

(2) heirs are bound to arbitration by their decedent's arbitration agreement;

(3) an unborn child is bound to arbitrate under the mother's arbitration agreement;

(4) a non-signatory physician associated with or employed by a signatory physician is bound to arbitration; and whether

(5) compliance with the provisions of section 1295 protects parties against subsequent challenges to the validity of the agreement. 

The next sections analyze these issues.

 

PART III.            MUTATIONS IN MICRA’S DEVELOPMENT AND APPLICATION: BINDING NON-SIGNATORIES TO MEDICAL ARBITRATION PROVISIONS

The common law policy of enforcing arbitration agreement provisions between patients and health care service plans predates section 1295.^[29]  The year after Section 1295 became law, the California Supreme Court expanded the application of arbitration provisions to medical service contracts between a California State board and health care service providers where the insured state employees never individually agreed to arbitrate.^[30]  In Madden v. Kaiser Foundation Hospitals, the California Supreme Court held that arbitration provisions are binding on individuals when “[a]n agent or other fiduciary contracts for medical treatment” on behalf of the beneficiary, and the agent or fiduciary has the authority “to enter into agreements providing for arbitration of claims for medical malpractice.”^[31]  The court stated that, under these circumstances, arbitration provisions are enforceable even if the beneficiary has no knowledge of the existence of the arbitration agreement.^[32]

Thus, when a health care service plan is a party to an arbitration agreement, appellate courts consistently have followed the binding authority of Doyle and Madden and found health care plan arbitration agreements valid and applicable to compel non-signatories to arbitrate causes of action derivative of medical malpractice concerning the signatory.^[33]  The only exception to this general rule was a 1996 court of appeal decision when the court refused to bind non-signatory cross-claimants, seeking indemnification from Kaiser Permanente Health Plan, to arbitrate their claim.^[34]  However, the court of appeal ruled that the signatory injured plaintiff himself was compelled to arbitrate pursuant to the arbitration agreement.^[35]

However, when the dispute concerns an individual and a non-health care plan provider, the California Supreme Court unfortunately has yet to take a position on whether non-signatories are bound to arbitrate their claims derivative of the signatory.^[36]  As a result, a current split of authority exists between appellate courts on this issue, as discussed in detail below.^[37] 

(A)  Binding Non-Signatory Spouses

As noted, courts are split on whether non-signatory spouses are bound to arbitrate under the terms of the signatory’s arbitration agreement.  In Baker v. Birnbaum,^[38]  the Second District Appellate Court analyzed “whether a spouse who signs an agreement to arbitrate her medical malpractice claims thereby binds her non-signatory spouse to arbitration when the medical services for which the signatory spouse signed were contracted for herself only.”^[39]  The Baker court followed its holding in a previously decided case,^[40] reiterating that the policy in favor of arbitration “does not extend to those who are not parties to an arbitration agreement or those who have not authorized anyone to act for them in executing such an agreement.”^[41] Thus, the Baker court concluded that non-signatories of an arbitration agreement were not bound by the signatory's arbitration agreement provisions.^[42]

Baker distinguished Harris v. Superior Court^[43] and Madden,^[44] stating that these cases, unlike the facts in Baker, both involved arbitration agreements signed with group health care service plans.  Baker noted that “group health plans, unlike individual contracts for medical services, were negotiated from a parity of bargaining power.”^[45]  Using the reasoning of Herbert v. Superior Court,^[46] Baker agreed that, because of the likelihood of unequal bargaining power, individual contracts for medical services “should be more rigorously analyzed and less quickly applied to the claims of a nonsignatore [sic].”^[47]  Baker agreed with the finding in Dinong v. Superior Court^[48] that Section 1295 provided greater statutory protection for those signing individual contracts for medical services than patients covered by a health care service plan.  Thus, Baker concluded that where the arbitration agreement was the product of an agreement between individuals, rather than an agreement which involved a health plan, a non-signatory spouse was not bound to arbitrate a derivative cause of action arising from the signatory spouse’s arbitration agreement.^[49]

In contrast, just three months later in another division of the same appellate district that decided Baker, the court of appeal in Gross v. Recabaren,^[50] decided that a husband's arbitration agreement did bind a non-signatory wife to arbitrate her loss of consortium claim.  Gross concluded that,

where a patient contracts to submit to arbitration any dispute as to medical malpractice, and that agreement fully complies with Code of Civil Procedure section 1295, it must be deemed to apply to all medical malpractice claims arising out of services contracted for, regardless of whether they are asserted by the patient or a third party.^[51]

           

Further, Gross opined that “[a] loss of consortium claim is unquestionably encompassed within this holding, for though it is not merely derivative or collateral to the spouse's cause of action, it is based on the physical injury or disability of that individual.”^[52]  Gross specifically disagreed with, and found no basis for Baker's presumption that individual arbitration agreements should be more rigorously analyzed than those associated with a group health plan under the dubious theory that individual arbitration agreements are presumably the product of unequal bargaining power.^[53]

Five years later, Pietrelli v. Peacock^[54] criticized Rhodes (and therefore, tacitly Baker), stating that Rhodes was “out of step with both the weight of California authority and the strong public policy favoring arbitration in medical malpractice cases since the enactment of section 1295.”  Consistent with the anti-Rhodes and anti-Baker sentiment, a subsequent appellate court, in Mormile v. Sinclair,^[55] specifically held that a woman’s arbitration agreement compelled arbitration of her husband's loss of consortium claim.  This court used the same reasoning as the court in Pietrelli. 

Additionally, one court of appeal held an unmarried non-signatory father bound to the arbitration provisions of the signatory mother.  Specifically, in Michaelis v. Schori,^[56] the court held an unmarried father of a stillborn child bound by the arbitration agreement signed by the mother in his claim against the mother's physician.^[57] 

Thus, while the more recent appellate court decisions have held non-signatory spouses bound to their signatory spouse’s arbitration agreements (when the provisions of section 1295 are satisfied), a split among the courts of appeal persists.  This division among the appellate districts should be remedied by the California Supreme Court.

 

(B)  Binding Heirs in Wrongful Death Actions

One of the more controversial aspects of the application of section 1295 involves whether heirs, who may not have even been born at the time their kin signed the arbitration contract, are bound to arbitrate under the contract terms.  In Rhodes, the appellate court held that a patient’s arbitration agreement is a contract^[58] and thus subject to the common law rule that non-parties to a contract are not bound by the terms of the contract.  Although recognizing a public policy favoring arbitration as a means to resolve controversies,^[59] the Rhodes court concluded that this policy did not extend to non-parties of the arbitration agreement.  Thus, the court of appeal held that a wife, as an heir, was not bound to arbitrate her “independent wrongful death cause of action” where the decedent husband was the signatory to the arbitration agreement.^[60] 

Rhodes distinguished Doyle v. Giuliucci,^[61] by noting that Doyle involved an arbitration agreement as part of a health care service plan package which bound his minor child to arbitrate the father’s wrongful death.^[62]  Rhodes, on the other hand, involved a mother’s individual arbitration agreement with a hospital.  The Rhodes court thus concluded that the mother’s heirs were not bound to arbitrate their wrongful death claim.^[63]

Confusing the situation even more, the following year another division of the same appellate district (as Rhodes) reached a conclusion the opposite of Rhodes.  Hawkins v. Superior Court^[64] held that a wife, as an heir, was bound to arbitrate a wrongful death cause of action under her signatory husband's arbitration agreement.^[65]  In Hawkins, the husband had enrolled the family in a health care service plan and had signed the arbitration agreement at the time of enrollment.  Despite the wife’s protest that she never agreed to be bound by the arbitration agreement or authorized her husband to do so on her behalf, the court held that a strong judicial policy favored arbitration over litigation, and that section 1295 provided for binding arbitration agreements in suits “arising out of professional negligence of a health care provider.”^[66] (emphasis added).  The court reasoned that spouses have a fiduciary responsibility to care for one another, and that this extended to health care arbitration agreements in which one had authority to bind the other by signing an arbitration agreement.^[67]

Slightly more than a year later, another unfortunate shift occurred when, in Weeks v. Crow,^[68] the appellate court interpreted the word “patient” in an arbitration agreement to apply only to the individual signing the arbitration agreement.  This distinction was important because a broad interpretation of the word “patient” would have included the newborn infant of the parents suing for wrongful death of their newborn; the mother had signed an arbitration agreement.  The court instead stated that, if the parties had intended the arbitration agreement to include medical services rendered to the child, the agreement should have so stated and should have expressly enumerated the yet “unborn patient.”^[69]  The court noted that the arbitration agreement defined “patient” as the “patient or dependent of patient, whether or not a minor, or the heirs at law or personal representative of the patient.”^[70]  The court viewed this definition to encompass only those alleging a cause of action arising from negligent injury to the signatory.  The agreement admittedly contained no reference to the expected child.  Thus, under Weeks, a parent is not bound to arbitrate a newborn’s wrongful death cause of action, unless the parent’s arbitration agreement expressly includes the unborn child.

In contrast, almost five years after Weeks, the court of appeal in Herbert v. Superior Court and Kaiser Foundation Hospitals^[71] held that “all heirs,” whether children or adults, and  whether members or non-members of the health care service plan, were “bound to arbitrate any dispute as to medical malpractice on the signatory.”^[72]  The court observed that the general term “all heirs” was sufficient, without specifically enumerating any particular party, to bind the wife and all the blood relatives.  The court relied on the prior case of Hawkins v. Superior Court where a health plan arbitration agreement containing a clause binding “heirs” applied to bind a wife to arbitrate her wrongful death cause of action of her signatory husband.^[73]

(C)  Binding the Unborn Child

An unborn child, even one who may not yet have been conceived, nonetheless may be held bound to an arbitration agreement in a contract signed by one of his or her parents.^[74]  The unborn child is bound even though the non-signatory parent has no knowledge that the signatory parent has signed the arbitration contract, nor would have approved of the signing of such a contract.^[75]  Indeed, as early as 1965, ten years before the enactment of section 1295, the California Supreme Court held in Doyle^[76] that a contract consenting to arbitration of medical negligence claims bound an infant who was unborn at the time of the alleged malpractice committed upon the infant’s father.^[77]  The arbitration agreement was contained in the member father’s health service plan.^[78]

Nearly twenty years later, the court of appeal in Weeks v. Crow^[79] refused to follow Doyle and found that, unless an infant or prospective neonate was expressly enumerated in the arbitration agreement, the unborn child was not bound by the terms of the parent's arbitration agreement.  The California Supreme Court mysteriously refused to review the Weeks’ decision.              Why the seemingly opposite results on such apparently similar facts?  In Weeks, the arbitration agreement was contained in the signatory parent’s individual contract with the health care provider.  In Doyle, however, the arbitration agreement was contained in the parent’s health insurance contract with a medical group health care service plan.^[80]

Three years after Weeks, the Third District Court of Appeals in Wilson v. Kaiser Foundation Hospitals^[81] distinguished Weeks and, in reliance on Doyle, held that, although a mother’s arbitration agreement did not specifically express an intention to bind an unborn child’s subsequent claim of negligent medical injury, the child nonetheless was bound by the mother's agreement because the unborn child became a member of the group health plan at birth.  The court found dispositive the terms of the agreement requiring arbitration of all claims “arising from rendition of or failure to render services under the agreement.”^[82]  The alleged injury, which occurred during prenatal services, was undisputedly within the time frame in which the agreement was applicable.  The court stated that it was logical to treat the unborn child and the newborn child the same since “neither a fetus nor a minor has a capacity to contract for medical services.”^[83] 

In distinguishing Weeks, the Wilson court of appeal stated that Weeks involved an arbitration contract as part of a hospital admission agreement, and that agreement did not purport to bind any person other than the signatory.^[84]  In contrast, Wilson involved an arbitration provision as part of a comprehensive, prepaid family health care service contract.^[85]  Further, the court in Weeks stated that health care service plans contemplate inclusion of additional family members, and that the mother was contemplating health care coverage of the newborn.^[86]  In Wilson the court of appeal correctly decided that the expectation of health plan medical coverage for a newborn provided the requisite implied intent to bind the newborn as a “patient” under a parent’s arbitration agreement.

In another court of appeal decision following the Wilson line of authority, the Second District Court of Appeal held in Balanos v. Khalatian^[87] that a mother's agreement to arbitrate “all medical malpractice claims relating to obstetric services” bound the newborn to the terms of the mother's valid arbitration agreement.  Balanos, similar to Wilson, found the authority of a minor’s parent to contract on a minor’s behalf extended to the unborn child.  Bolanos further generalized, stating in dictum that a mother’s contract providing for the submission of “all medical malpractice claims to arbitration” bound all parties alleging a cause of action based on medical services provided to the mother.^[88] 

Unlike Wilson, however, Bolanos involved an individual patient contracting with an individual physician, rather than a contract with a health care services plan.  The arbitration contract in question stated, “[i]t is the intention of the parties that this agreement bind all parties whose claims may arise out of or relate to 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.”^[89]  This specific, expressed intention to bind all parties making derivative claims to arbitrate such claims was the dispositive element lacking in Weeks.^[90]  In other words, to the extent the arbitration provision in Bolanos existed in Weeks, it appears more than a remote possibility that the Weeks’ court would have reached a result consistent with the better reasoned Wilson and Bolanos line of authority. 

Bolanos’ conclusion is particulary noteworthy in light of the contrary decision reached by the court of appeal in Weeks:

when a patient expressly contracts to submit to arbitration any dispute as to medical malpractice, and that agreement fully complies with the requirements of section 1295, it applies to all medical malpractice claims arising out of services contracted for, regardless of whether asserted by the patient or a third party.^[91]

 

Bolanos thus refused to narrowly construe the arbitration clause and instead correctly applied it to require derivative claims of the newborn to be submitted to binding arbitration.

            From the foregoing authorities it is apparent that, under California law, an individual’s arbitration agreement with a health care provider will have the same force and effect on non-signatory newborns as arbitration agreements with health care service plans if, and only if, the arbitration agreement expressly indicates an intention to bind all parties making claims which derive from the health care rendered the signatory.

Given the standardization of medical arbitration contracts, it seems unlikely going forward that such contracts will not include the appropriate language to require newborns to submit such claims to arbitration.  Of course, the California Legislature, if it so desired, could once and for all settle the conflict between the various courts of appeal by passing legislation which would obviate the distinction between contracts entered into with a health care services plan and those with an individual physician. That result would, in the author’s opinion, comport with the stated public policy of MICRA.

(D)  Binding Non-Signatory Physicians

Non-signatory physicians have generally been held bound to arbitration under the terms of health care contracts.  However, in Schirmer v. Fisher,^[92] the court of appeal held a physician employed by a professional medical corporation not bound to arbitrate under the terms of the arbitration contract signed by his physician employer and the patient.  In Schirmer, the Fourth District Court of Appeal held that, although the patient had signed an arbitration agreement with the physician-owner of the professional corporation, the patient was not bound to submit to arbitration because at the time she signed the contract, the non-signatory treating physician was not yet an employee of the professional corporation.^[93]  The court reasoned that because the non-signatory physician was not employed by the corporation at the time the patient signed, the patient intended to arbitrate only disputes arising with the signatory physician.  The Schirmer court stated:

Judicial enthusiasm for alternative methods of dispute resolution must not in all contexts override the rules governing the interpretation of contracts.  Certain basic principles of contract interpretation are applicable.  First the policy favoring arbitration cannot displace the necessity for a voluntary agreement to arbitrate.  The contract extends only to those things concerning which it appears that the parties intended to contract.^[94]

 

Thus, in Schirmer, the patient was not bound to arbitrate a claim against a physician employee of signatory physician because the patient had intended to compel arbitration only with the signatory physician.^[95]  The reasoning in Schirmer mirrors the narrow, and fortunately the minority views, of Baker^[96] and Weeks.^[97]

In this author’s opinion, Schirmer ignores the practical realities of a “mobile physician workforce,” so to speak.  Indeed, the patient makes the contract with the physician and expects that the arbitration provisions will compel arbitration of medical malpractice disputes.  Because the physician or medical group later hires an assistant or associate, who by coincidence sees the patient in the course of continuing care, that in and of itself should by no means relieve those employee physicians from the terms of the arbitration agreement. 

To look at it from a slightly different angle, the holding in Schirmer would require patients to inquire of the date of employment or association of every non-signatory physician the patient sees or may see (including doctors on call, perhaps, or those filling in for a sick colleague) in the signatory physician’s office.  The patient presumably could refuse to see a doctor -- even a specialist -- who was not employed by the corporation at the time of the contract because that physician would not be bound to arbitrate any subsequent medical malpractice disputes.^[98] 

In Harris v. Superior Court,^[99] the Second District Court of Appeal held that a physician’s status as an employee of his own professional corporation required him to submit to binding arbitration under the provisions of the health care plan arbitration agreement, even though the physician neither signed the agreement nor knew of its existence.^[100]  The physician, through his corporation, had contracted to provide services for a medical provider organization (Maxicare) with whom the patient had signed the arbitration agreement.  The court held that a physician’s voluntary contract with the health care service plan bound him to arbitrate professional negligence allegations under the health care service plan’s contract with plan members.^[101]  The court noted that a third party beneficiary cannot gain greater rights under a contract than one of the contracting parties.^[102]  That is, the physician, as a third party beneficiary of the health care service plan contract, was bound to arbitration just as the medical care provider organization (Maxicare) was bound to arbitrate medical negligence disputes according to the contract terms.^[103]  Thus, in Harris the non-signatory physician’s status as an employee of his own professional corporation required him to arbitrate because the patient’s health care plan contract contained an arbitration provision.^[104]

Michaelis v. Schori^[105] extended binding a non-signatory physician in a circumstance where one signatory party would normally not have the capacity to contract because of infancy.  The court of appeal there applied California Civil Code section 34.5^[106] to section 1295 and held that a pregnant unemancipated minor’s consent to medical care includes the minor’s ability to contract for the arbitration of medical negligence disputes.^[107]  Further, the treating non-signatory physician was bound to the contract terms by being an associate or partner of the signatory physician. 

The court in Michaelis relied on the holding in Gross:

when a patient expressly contracts to submit to arbitration any dispute as to medical malpractice, and that agreement fully complies with section 1295, it is deemed to apply to all medical malpractice claims arising out of the services contracted ....^[108]

 

Significantly, Michaelis correctly rejected the notion that parties are not bound to arbitrate because one party, for example an unemancipated minor, did not realize what was being signed.^[109]  The agreement signed by the minor provided that “[a]ll claims ... against the physician and the physician's partners, associates... must be arbitrated.”^[110]  The court of appeal found such language sufficient to bind the non-signatory associate physician to arbitrate the medical negligence dispute. 

 

PART IV.  QUESTIONING THE VALIDITY OF THE ARBITRATION AGREEMENT

(A)  Absence of Mutual Assent

Because mutual assent is a hallmark of bilateral contracts, one method of avoiding the arbitration clause terms is to assert contract invalidity because the signatory did not read or understand the contract.  In Wheeler v. Saint Joseph's Hospital,^[111] the court of appeal found an arbitration agreement provision in a defendant’s hospital “Conditions of Admission” form, signed by the patient and containing a thirty day rescission period, to be unenforceable because the contract possessed “all the characteristics of a contract of adhesion” and because the patient did not read the form before he signed it. Wheeler, however, was decided prior to the enactment of section 1295.  This line of argument should be invalid in light of MICRA and the enactment of section 1295, as interpreted by the Bolanos: “[s]ince the agreement ... is not one of adhesion, the general rule, that one who signs an agreement cannot avoid its terms on the ground that he failed to read it, is applicable.”^[112]

Again, prior to the enactment of section 1295, one court of appeal held an arbitration agreement valid to bind the patient when the signatory was acting as the patient’s agent, and yet invalid to bind the same signatory bringing a derivative claim.  In Rhodes, the court of appeal found the arbitration agreement valid against the non-signatory wife, but invalid to bind the husband’s claim for loss of consortium, even though the husband, acting as his wife’s agent, had signed the arbitration agreement.^[113]  The court also held the agreement did not apply to the couple’s son who, the court stated, had an “independent” cause of action of wrongful death of his mother.^[114]  Rhodes held that the son had “constitutional and procedural” due process rights to litigate his case because the cause of action had accrued before enactment of section 1295.  This argument should be invalid in light of the holding of Gross that,

where ... the agreement fully complies with Code of Civil Procedure section 1295, it must be deemed to apply to all medical malpractice claims arising out of services contracted for, regardless of whether they are asserted by the patient or a third party.^[115]  

The same division of the Second District Court of Appeals that decided Rhodes ruled ten years later, in Baker v. Birnbaum,^[116] that an arbitration agreement, even though fully compliant with section 1295,^[117] was invalid as applied to a non-signatory spouse.  Baker simply stated that non-signatories to an arbitration contract were not bound to arbitration because they were not a party to the contract.  Virtually all authority,^[118] including authority within the same division of that district appellate court, subsequently has disagreed with Baker.

Related to absence of mutual consent, the notion of invalidity of the arbitration agreement by lapse of time or purpose based the claim in Cochran v. Rubens.^[119]  The court of appeal ruled that whether an open book account exists is a matter of fact.  If a patient has signed an arbitration agreement with a physician in the past and returns later for medical care involving a different problem, a question exists as to whether the parties intended to bind all subsequent medical care or only medical care for the initial medical problem.  If the trier of fact determines the agreement involved only the initial problem, the arbitration agreement provision does not relate to an open book account and is therefore inapplicable.^[120]

 

(B)  Intentional or Criminal Conduct

The California Supreme Court has determined that arbitration clauses are invalid to compel arbitration when the claim involves intentional or criminal conduct.  In Victoria v. Superior Court,^[121] Chief Justice Bird, writing for the majority, held a health care plan arbitration agreement invalid where the cause of action was based on the negligent employment of an orderly accused of perpetrating an intentional and criminal act on a patient of the health plan, notwithstanding the language in the contract to cover “any claim arising from the rendition or failure to render services.”^[122] 

A vigorous dissent by Justice Lucas stressed that the case concerned Kaiser’s negligent conduct, not the perpetrator’s, and thus was within the scope of the arbitration agreement.  Lucas complained that Bird’s conclusions were not relevant to the question in Victoria which involved the selection of the forum for the plaintiff to prosecute her claim, not whether the plaintiff was entitled to a cause of action.^[123]  Justice Lucas emphasized that well-established public policy favored arbitration as a speedy and inexpensive method of resolving disputes, beneficial to all parties.  In Lucas's opinion, the majority in Victoria improperly focused on the employee's conduct, rather than the actual claim subject to arbitration.^[124]  In this author’s opinion, Justice Lucas’ reasoning appears clearly superior to that of the majority.  Nevertheless, the Supreme Court ruling stands that the arbitration clause is invalid when the cause of action is based on intentional or criminal conduct.^[125]

(C)  Contract Terms Disturbing Finality of the Agreement

Courts have rejected clauses within agreements which disturb the finality of the arbitrator’s decision.  In Beynon v. Garden Grove Medical Group,^[126] the court rejected an arbitration agreement provision which permitted the health care provider to reject the arbitrators’ decision and resubmit the dispute to another arbitration panel consisting of three doctors.  The court found this provision invalid because the plaintiff never agreed to it and because the provision was void as against public policy.^[127]  The original arbitrators’ award was final.

Consistent with this outcome and fifteen years after the enactment of section 1295, Gold v. Saika^[128] found an arbitration agreement provision, in full compliance with the provisions of section 1295, unenforceable due to violation of the public policy of “finality of an arbitration decision.”  This particular “poison pill” arbitration agreement contained a clause which provided either party the option of disregarding the arbitration award if the award exceeded $25,000.  The court emphasized “[t]he very essence of arbitration is finality,”^[129] and a proceeding to compel arbitration is a suit in equity for the specific performance of a contract.^[130]  Because the trial de novo clause was unenforceable in equity, the court found the arbitration award to the plaintiff valid and final in compliance with the finality concept of arbitration.  Saika suggested its finding was consistent with a California Supreme Court ruling that “arbitration awards are not subject to review for errors of law even when the result is to tolerate substantial injustice.”^[131]  Thus, any clause contained within an arbitration contract disturbing that disturbs the finality of an arbitration decision will likely be deemed unenforceable by courts under California law.

(D)  Fraud in the Inducement of the Arbitration Agreement

Recently, in Engalla v. Permanente Medical Group,^[132] the California Supreme Court considered the egregious circumstances under which a court may deny a petition to compel arbitration because of the petitioner’s fraud in inducing the arbitration agreement or waiver of the arbitration agreement.  Before his death, Engalla was engaged in a medical malpractice dispute with Kaiser which, according to the terms of the health care service plan, has been submitted to arbitration.  While the terms of the Kaiser plan provided for the selection of a neutral arbitrator^[133] within 60 days of filing, and the hearing subsequently held within a “reasonable” time, due to Kaiser’s apparent outrageously dilatory tactics a neutral arbitrator was not selected until 144 days had elapsed.^[134]  Unfortunately, Mr. Engalla died the very next day.^[135]  Given the supposition that “bad facts” may make “bad law,” the court held:

(1) that the evidence supported a finding that the HMO had fraudulently induced the participant to agree to arbitration;

(2) evidence further supported a finding the HMO had waived its right to arbitration through its dilatory tactics; and

(3) the arbitration agreement in question was not per se unconscionable.^[136]

 

Somewhat less egregious conduct than fraud involves the breach of the duty of good faith and fair dealing by an insurance company.  A 1996 appellate court decision held that an insurance company’s breach of the duty of good faith and fair dealing with its insured based on a forfeiture of the right to arbitration as provided in the medical insurance contract.^[137]  The court in Chase determined that the finding of such breach of duty was one of fact for the trial court and further, that this standard did not violate federal law, nor was it preempted by the Federal Arbitration Act.^[138]

(E) Arbitrator Neutrality^[139]

The Wheeler Court^[140] found an independent basis for reversal of the arbitrator’s judgment.  The United States Supreme Court had announced a principle that an arbitrator must disclose any dealings which might create an impression of possible bias; not doing so was grounds for vacating an award.^[141]  In Wheeler, the physician member of the arbitration panel, after his appointment as a neutral arbitrator, performed a medical evaluation of a patient in an unrelated case for a non-involved attorney in the defendant’s firm.^[142]  The court set aside the arbitration award because of the lack of disclosure of possible interest by the arbitrator.  Likely, under California’s Civil Arbitration provision, the selected neutral arbitrator must disclose any possible conflict of interest.

 

V.  CONCLUSION

Arbitration has served as an integral part of a successful legislative policy aimed at resolving those conflicts which threatened the delivery of adequate health care in California.  The public policy favoring arbitration over litigation as a means of resolving medical malpractice disputes is now well accepted. Arbitration, conducted according to the rules of the California Arbitration Act statute should provide a fair and efficient remedy for medical malpractice causes of action.  Dilatory tactics and fraud in the inducement should be condemned and punished, and now there is California Supreme Court authority for negating arbitration clauses when such abuses do occur.^[143]

Negligence, recklessness, and intentional medical torts have been, and should continue to be, appropriately remedied using this important dispute resolution tool.  Avoiding congested court calendars, arbitration should resolve claims more quickly, at less cost, and provides a finality to the dispute.

As an essential component of MICRA, medical arbitration contracts help ensure the continued availability of professional liability insurance to health care providers, protecting the best source of funds to compensate California citizens injured by medical negligence.

As provided in section 1295, and recognized by several courts of appeal, when the requirements of section 1295 are met, the contract is “not a contract of adhesion, nor unconscionable nor otherwise improper.”^[144]  However, conflicting case law among the appellate courts applying section 1295 to non-signatories threatens the future viability of section 1295.  Therefore, the California Supreme Court should resolve this conflict by providing clear, unambiguous, binding authority mandating the application of section 1295 to all third party non-signatories making derivative claims.

The California Supreme Court should follow the simple, unambiguous, and logical conclusions of Gross which are sustained by the consecutive findings in Bolanos, Michaelis, and Mormile: “when a patient expressly contracts to submit to arbitration any dispute as to medical malpractice, and that agreement fully complies with section 1295, it is deemed to apply to all claims arising out of the services rendered, whether asserted by the patient or a third party.”^[145]  In effect, these holdings permit the contracting signatories to control the forum where claims arising from their medical care will be heard.  Intuitively, the signatory should have control of his or her own health care decisions, not some third party.  It follows that the signatory should control the choice of health care decisions over those whom she has legal authority, such as an unborn child.  Since Baker and Rhodes violate the signatory’s right to choose the forum, these cases should be depublished or overruled.