Avila v. Southern California Specialty Services, DCA4/3, 2/26/18
Avila was his elderly father’s POA. He checked his father into defendant’s facility, a long term acute care hospital, signing arbitration agreements on behalf of his father. The arbitration agreements covered claims arising from the hospital stay and purported to bind his father’s heirs, family, spouse etc., which included Avila. When his father died because of the effects of a dislodged feeding tube, Avila sued for negligence/willful misconduct, elder abuse and wrongful death. The trial court denied defendant’s motion to compel arbitration. Held: Affirmed.
Code of Civ Proc. 1295 contains certain requirements for arbitration agreements of “any dispute as to professional negligence of a health care provider.” It defines “professional negligence” 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.”
The California Supreme Court held that section 1295 permitted patients who consented to arbitration to bind their heirs in actions for wrongful death. Ruiz v. Podolsky (2010) 50 Cal.4th 838, 849 (Ruiz),
This principle extends only to cases for medical malpractice, not elder abuse. If the primary basis for the wrongful death claim sounds in professional negligence as defined by MICRA, then section 1295 applies. If the primary basis is under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, §15600 et seq.) then section 1295 does not apply. In the latter case, Avila could not be compelled to arbitrate because he didn’t consent to arbitration.
The court acknowledged that the pleading contained allegations of professional negligence and elder abuse. The complaint alleges a
“conscious and continued pattern of withholding the most basic care and services,” which included a lack of monitoring, supervision, assistance, and other adequate care and services. It alleges the lack of availability of a physician, failure to provide properly trained staff and nursing, among other things. According to the court, the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care. The problem with this analysis is that section 1295 applies when there has been “a negligent act or omission to act by a health care provider.”
Therefore, the claims made on behalf of the deceased father were covered by the arbitration agreement and Avila’s weren’t. Under CCP 1281.2, the trial court has discretion not to enforce an arbitration agreement if a party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions, and there is a possibility of conflicting rulings on a common issue of law or fact. The trial court’s decision that the section 1281.2 factors had been met is reviewed for abuse of discretion, which is a difficult standard to overcome.