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Division Seven of the Second Appellate District recently held that
an arbitration agreement signed by a patient who dies within the 30
statutory “cooling off” period pursuant to Code of Civil Procedure
section 1295(c) cannot be enforced against the decedent’s heir in a
wrongful death action and ordered the trial court to vacate its
order granting defendant’s petition to arbitrate. The decision in
Rodriguez v. Superior Court (Witzling) (August 26, 2009) 09 C.D.O.S.
11053, is the latest of a recent series of appellate court decisions
that have found arbitration agreements unenforceable for a variety
of reasons, particularly in the context of a wrongful death action.
(1)
Plaintiff minor Rodriguez sought a writ of mandate from the court of
appeal after the Superior Court of Los Angeles granted defendant
Sandy Witzling, M.D.’s petition to arbitrate the wrongful death
claim Rodriguez brought following the death of her mother. The
arbitration agreement was signed by Rodriguez’s mother on October
17, 2006, four days before what was expected to be routine
gallbladder surgery. The agreement specifically stated that the
signatories to the agreement were giving up their right to a jury
trial, and that any dispute would be arbitrated “as provided by
California law.” The agreement further stated “it was the parties’
intention that the agreement was binding on ‘all parties,’ including
the patient’s children.” The 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.’”
On October 21 the patient died, allegedly as a result of a nick to
her liver made by Dr. Witzling during the surgery. Rodriguez was 8
years old at the time of her mother’s death and the sole heir to her
estate. She filed a medical malpractice action through a guardian ad
litem against Witzling and others. In July, Witzling filed a
petition to compel 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.” Witzling replied that the
minor’s guardian had the standing and ability to revoke the
arbitration agreement, but having failed to do so, waived the issue.
The trial court granted Witzling’s petition to arbitrate and stayed
proceedings as to him until the arbitration was completed. Rodriguez
argued in her writ petition 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” primarily because her mother died
within the statutory 30-day rescission period, and it was impossible
for Rodriguez to have acted during the rescission period since “she
was a minor who was the subject of a custody dispute and no guardian
had been appointed by the court within the 30-day rescission
period.”
In granting Rodriguez’s writ and ordering the trial court to vacate
its order compelling arbitration the appellate court discussed the
policies behind and procedures of arbitrating medical malpractice
claims under CCP section 1295. While the court said there is a
strong public policy “favoring arbitration over a jury trial,” it
noted there is “no conclusive presumption that a person who signs a
document containing the text complying with section 1295
requirements has in fact consented to arbitration as required to
form an enforceable contract.” It pointed to the mandatory 30-day
cooling-off period during which the patient may give written notice
of rescission.
The court observed that the parties were primarily focused on
whether “the document signed by Newton is binding on her minor
daughter, Rodriguez.” However, the court said in its opinion “the
threshold issue is raised by Rodriguez’s contention that no valid
waiver of the right to a jury trial was made. Without a valid
waiver, no enforceable arbitration agreement would exist.” It noted
“[t]he right at issue is a constitutional right held by Rodriguez.”
Even if, for the sake of argument, Newton had the authority to waive
her child’s right to a jury trial, “such waiver would be ineffective
if not knowingly and voluntarily made.”(2) The fact the patient died
before the end of the 30-day cooling off period made full compliance
with section 1295 “impossible.” In light of this fact, the court
found Witzling “would be unable to carry his burden of proving an
agreement exists.”
The court explained that after “weighing the competing interests of
an individual’s constitutional right to a jury trial against the
Legislative preference for arbitration of medical malpractice
claims” when there is no evidence of a knowing waiver of the right
to a jury trial, the litigant’s constitutional rights must prevail.
Compliance with section 1295’s cooling off period “should be
interpreted as a strict and exclusive prerequisite for waiver of a
jury trial,” and it makes “no provision for tolling the period on
any basis in the event the patient who signed the agreement dies
before the 30-day period has run.”
The notion of “equitable tolling” was addressed by the court, but it
found the concept inapplicable to the facts before it.
This is a very interesting case, since many wrongful death cases
arise from situations in which a patient sees a physician for a
particular type of treatment—perhaps for the first time—is asked to
sign an arbitration agreement, and then has the procedure that ends
up being at the center of the wrongful death allegations. Toward the
end of its opinion, the court seems to suggest a way in which an
arbitration agreement might be drafted to apply to a minor heir by
providing that a guardian appointed for the child after the parent’s
death “may exercise the right to rescind set forth in section 1295,
subdivision (c), and otherwise satisfies the section’s
requirements;” such an agreement “would be enforceable in the event
the guardian did not timely exercise the right to rescind.” Then, if
the parties argue about whether an attempted rescission was timely,
the court might apply the “equitable tolling doctrine to extend the
time for the guardian to act to exclude any period before the
guardian was appointed, as well as any additional time between
appointment and the time the guardian knew (or reasonably should
have known) about the arbitration agreement.” The court went on to
note at oral argument the attorneys suggested the “excluded period
of time in most cases should end no later than the date the section
364 notice of intent to sue is served.” Clients who use arbitration
agreements should be advised to rewrite their agreements in a manner
consistent with the suggestions of this decision. However, depending
on the fate of the Ruiz decision, the modifications suggested by the
Rodriguez court may be for naught.
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1) Ruiz v. Poldolsky which held decedent’s arbitration agreement
was not enforceable against non-signatory heirs in wrongful death
action for medical malpractice (requests for depublication and
petitions for review to the Supreme Court are pending); Birl v.
Heritage Care LLC, in which the court found the trial court did not
abuse its discretion by refusing to enforce an arbitration agreement
where there are third parties in the action unaffected by the
agreement; and, Burlage v. Superior Court, in which the court
affirmed the trial court’s vacation of a private arbitration award
on the grounds that the arbitrator’s exclusion of evidence
substantially prejudiced a party.
2) The court referenced the Ruiz decision (see footnote 1) after
stating that “California law establishes the right of a parent to
bind a minor child to an arbitration agreement, under some
circumstances, when it is the parent, not the child, who is the
patient, even though the effect of such an agreement is ultimately
to require arbitration of the child’s wrongful death action.” Ruiz
held that the children of the decedent could not be bound by his
arbitration agreement since a wrongful death action is an
independent claim belonging to them that the deceased patient could
not waive. |
