Ruiz v. Podolsky 6/24/09 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G040843

Case Date: 10/15/2009

Preview:Filed 6/24/09

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

ALEJANDRA RUIZ et al., Plaintiffs and Respondents, v. ANATOL PODOLSKY, Defendant and Appellant. G040843 (Super. Ct. No. 07CC08001) OPINION

Appeal from an order of the Superior Court of Orange County, James Di Cesare, Judge. Affirmed. Schmid & Voiles, Denise H. Greer for Defendant and Appellant. Cornelius P. Bahan, Inc., and Cornelius P. Bahan for Plaintiffs and Respondents.

This appeal arises from the trial courts denial of a physicians petition to compel arbitration of the wrongful death action brought by the adult children heirs of his patient, Rafael Ruiz (Rafael).1 Alejandra Ruiz (Wife) and the four adult children, Alejandro, Ana, Diana, and Samuel (collectively referred to as the Adult Children) filed an action against Anatol Podolsky, an orthopedic surgeon, and other health care providers (who are not parties to this appeal). Podolsky sought to enforce the arbitration agreement he had with Rafael against the surviving heirs. Wife conceded she was bound by the arbitration agreement, but she and the Adult Children argued the Adult Children were not bound to arbitrate, and the matter should remain in superior court to prevent conflicting rulings. The trial court granted the petition to compel arbitration as to Wife but denied the petition as to the Adult Children. On appeal, Podolsky argues Rafael had the broad authority to waive the Adult Childrens right to a jury trial of their independent wrongful death claims simply because Rafaels spouse conceded she was bound to the agreement and the wrongful death statute requires litigation of the action in one forum. In California, there is a split of authority as to the scope of a patients authority to bind his or her spouse and adult children to an arbitration agreement. One line of cases beginning with Rhodes v. California Hospital Medical Center (1978) 76 Cal.App.3d 606 (Rhodes), holds wrongful death is not a derivative cause of action and therefore a patient cannot bind nonsignatory heirs bringing a wrongful death claim absent a preexisting agency-type relationship. Another line of cases following Herbert v. Superior Court (1985) 169 Cal.App.3d 718 (Herbert), suggests there are important public policy reasons to infer patients being treated have the broad authority to bind

1

We refer to the Ruiz family by their first names for clarity and ease of reference, and intend no disrespect. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)

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nonsignatory heirs to a medical arbitration agreement, especially in cases of wrongful death. Based on our review of the authority in California and other jurisdictions, we conclude Californias wrongful death statute does not create a derivative action and therefore Rafael lacked authority (express or implied) to bind Wife or the Adult Children to the physician-patient arbitration agreement he signed simply to receive treatment for himself from Podolsky. Principles of equity and basic contract law outweigh the convenience of litigating in one forum and the public policies favoring arbitration. Accordingly, we hold the trial court correctly concluded the Adult Children cannot be compelled to arbitrate their wrongful death claims. As for Wife, it appears she was not bound to the arbitration agreement, but she invited error on this issue in the trial court by conceding she must arbitrate her claim. This court cannot revisit the issue because Wife failed to appeal from the courts order compelling arbitration of her claim. Consequently, this case presents a unique legal quagmire. On one hand, the wrongful death statute ordinarily calls for "one action" to be jointly maintained by the heirs. On the other hand, Code of Civil Procedure section 1281.2, subdivision (c),2 eliminates any discretion to disregard Wifes purported arbitration agreement with the health care provider, despite the possibility of inconsistent results inherent in litigating the same wrongful death action in two forums. Thus, we have a case in which Wife can be compelled to arbitrate her claim; the Adult Children cannot be forced to arbitrate their claims. The defendant ordinarily is given the protection of litigating in one forum; however, we conclude Podolsky has waived the protections offered by the statutorily created "one action rule" for wrongful death cases by filing his petition to compel arbitration, causing the lawsuit to be split into two
2

All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.

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forums. All may end well, but this is likely not the result Podolsky envisioned. He now risks the possibility of inconsistent results and additional expense by litigating the same claim in two forums. He has the option to waive his right to arbitrate Wifes claim or proceed. The decision is his, not ours. The order is affirmed. FACTS In July 2007, Wife and the Adult Children filed a complaint against Podolsky and other health care professionals alleging wrongful death and medical malpractice. They maintained the defendants failed to adequately identify and treat Rafaels 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. 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 the Adult Children were "swept up" into the arbitration agreement along with 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 Wife. The court stayed the superior court "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. Wife did not appeal. DISCUSSION A. Standard of Review "There is no uniform standard of review for evaluating an order denying a motion to compel arbitration. [Citation.] If the [trial] courts order is based on a decision of fact, then [the reviewing court] adopt[s] a substantial evidence standard. [Citations.] 4

Alternatively, if the courts denial rests solely on a decision of law, then a de novo standard of review is employed. [Citations.]" (Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425.) Like many physicians, it was Podolskys practice to offer new patients an arbitration agreement to sign before being examined. Rafael signed the agreement when he went to Podolskys office, he was not examined that day, but he was asked to return 10 days later. The agreement provided, in pertinent part, "It is the intention of the parties that this agreement bind all parties whose claims may arise out of or relate to the 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." (Bold omitted.) The relevant facts and arbitration agreements language are undisputed. Accordingly, we independently review the agreements effect. (Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 684.) B. General Law Regarding Wrongful Death--the One Action Rule A wrongful death cause of action is a statutory claim (

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