Stanford Law School - Robert Crown Law Library

Filed 8/23/10

IN THE SUPREME COURT OF CALIFORNIA

ALEJANDRA RUIZ et. al.,
Plaintiffs and Respondents,
S175204
v.
Ct.App. 4/3 G040843
ANATOL PODOLSKY,
Orange County
Defendant and Appellant.
Super. Ct. No. 07CC08001

For over 30 years, courts have been grappling with the following issue, appearing
in various factual scenarios: when a person seeking medical care contracts with a health
care provider to resolve all medical malpractice claims through arbitration, does that
agreement apply to the resolution of wrongful death claims, when the claimants are not
themselves signatory to the arbitration agreement? To resolve this issue, we must
consider on the one hand the fact that wrongful death claims in the state are not derivative
claims but are independent actions accruing to a decedent‘s heirs, as well as the fact that
generally arbitration can be compelled only when a party has consented to the arbitration.
On the other hand, we must address Code of Civil Procedure section 1295,1 which as
explained below, contemplates that all medical malpractice claims, including wrongful
death claims, may be subject to arbitration agreements between a health care provider and
the patient.

1
All statutory references are to this code unless otherwise indicated.
1

We hold that all wrongful death claimants are bound by arbitration agreements
entered into pursuant to section 1295, at least when, as here, the language of the
agreement manifests an intent to bind these claimants. This holding carries out the intent
of the Legislature that enacted section 1295 and related statutes.
I.
FACTUAL BACKGROUND
The facts of this case relevant to this opinion are not in dispute. Rafael Ruiz
attended an appointment at the office of Dr. Anatol Podolsky, an orthopedic surgeon, on
July 17, 2006, about the treatment of a fractured hip. On the same day, they both signed
a ―Physician-Patient Arbitration Agreement.‖ The agreement provided for the arbitration
of any malpractice claims, consistent with the language of section 1295, further described
below. The agreement further provided that it was the intention of the parties ―that this
agreement binds all parties whose claims may arise out of or relate to treatment or service
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 the claim.‖
Elsewhere the agreement specifically provided for arbitration of wrongful death and loss
of consortium claims.
Ruiz died on July 25, 2006. In July 2007, Alejandra Ruiz (the Wife) and the four
adult children, Alejandro, Ana, Diana, and Samuel (collectively referred to as the adult
children) filed an action against Podolsky, and other health care providers (who are not
parties to this appeal), alleging claims for medical malpractice and wrongful death. They
maintained that Podolsky and the other named defendants failed to adequately identify
and treat Rafael‘s 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. The 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
2

court should allow the parties to proceed in the trial court to avoid inconsistent verdicts,
unnecessary delay, multiple actions, and duplicative discovery. Podolsky responded that
the adult children were ―swept up‖ into the arbitration agreement along with the 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 the Wife. The court stayed the ―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. The Wife did not appeal.
The Court of Appeal concluded that the Wife was bound by the arbitration
agreement through principles of equitable estoppel and invited error. Nonetheless, it
concluded the trial court was correct to deny the petition to compel arbitration as to the
adult children. It concluded that because the adult children had not consented to the
arbitration, they were not now required to arbitrate. Nor did the Court of Appeal find any
reason for compelling the adult children to arbitrate their claims simply because the Wife
was so compelled. We granted review.
II.
THE STATUTORY BACKGROUND
Because the case requires us in some sense to reconcile the special health care
arbitration statute with the wrongful death statute, we begin with a review of these two
statutes.
A. Section 1295
Section 1295, subdivision (a) provides: ―Any contract for medical services which
contains a provision for arbitration of any dispute as to professional negligence of a
health care provider shall have such provision as the first article of the contract and shall
be expressed in 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
3

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
of 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.‘ ‖ (Italics added.)
Subdivision (b) of the same statute states: ―Immediately before the signature line
provided for the individual contracting for the medical services must appear the following
in at least 10-point bold 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.‘ ‖
As we stated in Reigelsperger v. Siller (2007) 40 Cal.4th 574, 577-578
(Reigelsperger): ―Section 1295 was enacted as part of the Medical Injury Compensation
Reform Act of 1975 (MICRA). (Stats. 1975, 2nd Ex. Sess. 1975-1976, ch. 1, § 26.6, pp.
3975-3976.) MICRA was a response to a perceived crisis regarding the availability of
medical malpractice insurance. ‗The problem . . . arose when the insurance companies
which issued virtually all of the medical malpractice insurance policies in California
determined that the costs of affording such coverage were so high that they would no
longer continue to provide such coverage as they had in the past. Some of the insurers
withdrew from the medical malpractice field entirely, while others raised the premiums
which they charged to doctors and hospitals to what were frequently referred to as
―skyrocketing‖ rates. As a consequence, many doctors decided either to stop providing
medical care with respect to certain high risk procedures or treatment, to terminate their
practice in this state altogether, or to ―go bare,‖ i.e., to practice without malpractice
4

insurance. The result was that in parts of the state medical care was not fully available,
and patients who were treated by uninsured doctors faced the prospect of obtaining only
unenforceable judgments if they should suffer serious injury as a result of malpractice.‘
[Citation.] [¶] The purpose of section 1295 is to encourage and facilitate arbitration of
medical malpractice disputes. [Citations.] Accordingly, the provisions of section 1295
are to be construed liberally.‖ In other words, the encouragement of arbitration ― ‗as a
speedy and relatively inexpensive means of dispute resolution‘ ‖ (Moncharsh v. Heily &
Blase (1992) 3 Cal.4th 1, 9) furthers MICRA‘s goal of reducing costs in the resolution of
malpractice claims and therefore malpractice insurance premiums.
Because section 1295, subdivision (a) contemplates arbitration agreements to
resolve disputes concerning ―professional negligence,‖ the definition of that term is
particularly critical to the understanding of this case. ―Professional negligence‖ is
defined in section 1295, subdivision (g)(2) 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.‖ (Italics added.)
B. The Wrongful Death Statute
Section 377.60 authorizes a wrongful death action by specified persons including
the decedent‘s spouse and children. ―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.]‘ ‖ (Horwich v. Superior Court (1999) 21
Cal.4th 272, 283, italics omitted (Horwich).)
5

As was stated in San Diego Gas & Electric Co. v. Superior Court (2007) 146
Cal.App.4th 1545, 1551, any wrongful death recovery ―is in the form of a lump sum
verdict determined according to each heir‘s separate interest in the decedent‘s life
[citation], with each heir required to prove his or her own individual loss in order to share
in the verdict. (§ 377.61; [citation].) Because a wrongful death action compensates an
heir for his or her own independent pecuniary losses, it is one for ‗personal injury to the
heir.‘ [Citations.] Thus, in a wrongful death action the ‗injury‘ is not the general loss of
the decedent, but the particular loss of the decedent to each individual claimant.‖
III.
THE CASE LAW
Courts have long struggled with the issue of whether arbitration agreements
between health care providers and patients bind spouses and children of the patients who
file wrongful death actions. A survey of the cases does not reveal a simple conflict, but
rather a more complex taxonomy under varied factual circumstances.
In one camp are the health plan cases, in which one or more of the family
members asserting the wrongful death claim belong to the same health plan as the
decedent, and in which the decedent signed the arbitration agreement on behalf of himself
and those other family members. In Hawkins v. Superior Court (1979) 89 Cal.App.3d
413 the decedent had enrolled himself and his family in the Kaiser Foundation Plan. (Id.
at p. 415.) He agreed to a contract containing an arbitration provision applying to ― ‗any
claim arising from the violation of a legal duty incident to this Agreement.‘ ‖ (Ibid.)
When he died of cancer his wife filed a wrongful death action against the plan and others
and defendants petitioned to compel arbitration. The court affirmed that the wife was
bound by the arbitration agreement signed by the husband. It acknowledged the general
rule that ―[a] person cannot be compelled to accept arbitration of a dispute he has not
agreed to submit to arbitration.‖ (Id. at p. 416.) But it recognized that the rule had been
qualified. The Hawkins court relied on Doyle v. Guiliucci (1965) 62 Cal.2d 606, in
6

which this court held that a parent who contracted with a health plan to cover a minor
child was empowered to bind the child to an arbitration agreement when the minor
asserted a malpractice claim. (Id. at p. 610.) Hawkins also relied on Madden v. Kaiser
Foundation Hospitals (1976) 17 Cal.3d 699 (Madden), in which this court held that a
state employee was bound by an arbitration provision that was part of an agreement
negotiated between the health care plan and the State Employees Retirement System.
Similarly, the decedent had the power to agree to a health care contract that would bind
both his wife and himself. (Hawkins, supra, 89 Cal.App.3d at pp. 418-419.)
In Herbert v. Superior Court (1985) 169 Cal.App.3d 718 (Herbert), perhaps the
leading case in this area, petitioners were the widow and children of decedent Clarence
Herbert. Herbert and his wife and five minor children were members of the Kaiser
Foundation Health Plan. Herbert‘s three adult children were not members. He agreed to
arbitrate malpractice claims and the question was whether his widow and children were
bound by that agreement in a wrongful death action. (Id. at p. 720.)
The court first determined that the wife and minor children were bound to arbitrate
under the reasoning of Doyle and Hawkins for reasons stated in those opinions. (Herbert,
supra, 169 Cal.App.3d at p. 724.) The court then considered whether the adult children
not a part of the health plan should be bound by the arbitration agreement. The Herbert
court concluded in the affirmative, for reasons both doctrinal and pragmatic: ―The
reasons requiring the nonsigning heirs to be bound by the agreement are far more
convincing than any arguments in support of the trial court order that would require two
separate and distinct proceedings. First, we cannot ignore the established law that a
single cause of action exists in the heirs for the wrongful death of a decedent. (Mayerhoff
v. Kaiser Foundation Health Plan, Inc. [(1977)] 71 Cal.App.3d 803.) This requirement
alone should prevent a splitting of the litigation into different tribunals where differing
rulings and results could destroy the Legislature‘s policy enunciated in Mayerhoff.
7

Second, it is obviously unrealistic to require the signatures of all the heirs, since they are
not even identified until the time of death, or they might not be available when their
signatures are required. Furthermore, if they refused to sign they should not be in a
position possibly to delay medical treatment to the party in need. Although wrongful
death is technically a separate statutory cause of action in the heirs, it is in a practical
sense derivative of a cause of action in the deceased. Decedents are able to bind their
heirs through wills and other testamentary dispositions so the concept is not new or
illogical. Instead it is the only pragmatic solution in such a situation.‖ (Herbert, supra,
169 Cal.App.3d at pp. 725.)
Also critical to the Herbert court‘s determination was the enactment of section
1295, providing for arbitration of ―professional negligence‖ claims, including wrongful
death. ―Subdivisions (a) through (c) of that section set forth strict requirements for a
valid medical malpractice arbitration provision in an individual contract for medical
services. Although these requirements are inapplicable to so-called ‗health care service
plans‘ such as Kaiser (Code Civ. Proc., § 1295, subd. (f)), this is only because such plans
must contain alternative means for notifying plan members of arbitration provisions in
the plan agreements. Under section 1295, arbitration of wrongful death or other
professional negligence claims may not be compelled if the requirements of that section
are not met. It logically follows that arbitration provisions may be enforced where, as
here, proper notice of the arbitration provision is given.‖ (Herbert, supra, 169
Cal.App.3d at pp. 726-727, fn. omitted; see also Drissi v. Foundation Hospitals, Inc.
(N.D.Cal. 2008) 543 F.Supp.2d 1076 [following Herbert]; Clay v. Permanente Medical
Group (N.D.Cal. 2007) 540 F.Supp.2d 1101, 1110-1111 [same].)
On the other hand, when a wrongful death or loss of consortium claim is asserted,
but none of the plaintiffs are bound to the arbitration agreement by common plan
membership, courts are divided as to whether nonsignatory plaintiffs are obliged to
8

arbitrate. In Baker v. Birnbaum (1988) 202 Cal.App.3d 288 (Baker) the wife brought suit
against a health care provider for malpractice. Although she was a signatory to the
arbitration agreement, the husband who sued for loss of consortium was not. Only the
husband appealed from the trial court‘s order to arbitrate the loss of consortium claim.
(Baker, supra, at p. 290.) Thus Baker unlike Herbert and Hawkins was not a wrongful
death case.
After affirming that binding arbitration requires the consent of the parties, the
Baker court distinguished Hawkins. The agreement in Hawkins was worded broadly to
encompass all claims, whereas ―Mrs. Baker contracted for medical care solely on her
own behalf, and the agreement to arbitrate related only to such services as would be
provided to her under that contract.‖ (Baker, supra, 202 Cal.App.3d at p. 292.) The
Baker court also distinguished Herbert, inasmuch as the latter case involved a group plan
negotiated ― ‗between parties possessing parity of bargaining strength‘ ‖ (Baker, supra, at
p. 293) and that ―Herbert acknowledges that an individual contract for medical services,
as is involved here, should be more rigorously analyzed and less quickly applied to the
claims of a nonsignatory.‖ (Id. at pp. 293-294.)
The Baker court went further, however, and declined to follow Herbert. (Baker,
supra, 202 Cal.App.3d at p. 294.) ―We must expressly decline to follow Herbert,
however, in that it, as appellant argues, would apparently attempt, even in this situation,
to force respondent herein to arbitrate solely to avoid litigation of these claims in two
different tribunals.‖ (Ibid.)
In Gross v. Recabaren (1988) 206 Cal.App.3d 771, 780-781 (Gross), the husband
filed a medical malpractice complaint related to his surgery, and his wife, a nonsignatory
to the arbitration agreement, filed a loss of consortium claim. (Id. at p. 774.) Therefore
Gross, like Baker and unlike Herbert and Hawkins, was a loss of consortium rather than
wrongful death case. The Gross court was persuaded by Herbert‘s construction of
9

section 1295. Most significant for the court in Gross was the fact that a requirement that
persons other than the patient sign the arbitration agreement in order to be bound by that
agreement would result in a substantial loss of privacy to the patient. ―[T]o authorize an
intrusion into a patient‘s confidential relationship with a physician as the price for
guaranteeing a third person, even a spouse, access to a jury trial on matters arising from
the patient‘s own treatment, poses problems of a particularly serious nature. One might
hope that spouses will voluntarily communicate with each other regarding their
respective medical treatment, whether it involves a routine matter or a most intimate and
sensitive procedure such as a vasectomy or the termination of a pregnancy. Nonetheless,
it would be impermissible to adopt a rule that would require them, or their physicians, to
do so, or that would permit one spouse to exercise a type of veto power over the other‘s
decisions. Yet construing section 1295 to require a spouse‘s concurrence in an arbitration
agreement would, in certain situations at least, have exactly that effect.‖ (Gross, supra,
206 Cal.App.3d at p. 782, italics omitted.)
Based on these considerations, the Gross court stated its holding broadly: ―We
therefore hold that where, as here, a patient expressly 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 the services contracted for, regardless of whether they are asserted
by the patient or a third party.‖ (Gross, supra, 206 Cal.App.3d at p. 781, italics omitted;
accord, Bolanos v. Khalatian (1991) 231 Cal.App.3d 1586, 1591.)
Mormile v. Sinclair (1994) 21 Cal.App. 4th 1508 (Mormile) also relied on section
1295 to conclude that a nonsignatory husband‘s loss of consortium claim was
encompassed by his wife‘s arbitration agreement. ―[I]f a spouse with a loss of
consortium claim were allowed to litigate that claim, the purpose of section 1295 would
be defeated, for the patient would be compelled to arbitrate, but the physician would still
10

have to answer in a civil suit for claims dependent on identical facts regarding the
professional standard of care, its breach by the defendant and causation of injury to the
patient. No savings would be effected, and there would be the potential for an anomalous
result: the patient might fail to establish liability in arbitration, while the nonsignatory
spouse might prevail in the loss of consortium action.‖ (Mormile, supra, 21 Cal.App.4th
at p. 1515.)
In Buckner v. Tamarin (2002) 98 Cal.App.4th 140 (Buckner) the nonsignatory
adult children sued the health care provider for the wrongful death of their father.
Buckner distinguished Herbert. ―In Herbert, the wrongful death claimants fell into three
groups. For two of those groups — the widow and minor children — the decedent‘s right
to bind them to arbitration rested on well-grounded legal principles involving spouses and
parents and children. For the third group, however — adult children who did not belong
to the health plan — the decedent had no authority to act. The Herbert court nevertheless
found that practical considerations involving the indivisibility of wrongful death claims
permitted the arbitration agreement to sweep up the adult children. Herbert‘s rationale is
inapplicable here because respondents are not dividing their wrongful death claims
between different forums. Accordingly, Herbert does not apply.‖ (Buckner, supra, at p.
143.)
The court also rejected out of hand the broad language in Mormile suggesting that
a wrongful death claimants could be bound by the patient‘s arbitration agreement,
concluding that such language was dicta and that Mormile was distinguishable in that it
involved a spouse rather than the adult children. (Buckner, supra, 98 Cal.App.4th at
pp. 143-144; see also Goliger v. AMS Properties, Inc. (2004) 123 Cal.App.4th 374, 377-
378 [following Buckner in holding that an adult cannot sign away the arbitration rights of
another adult if not in an agency relationship].) Instead, Buckner affirmed the primacy of
11

the rule that ― ‗a party cannot be compelled to arbitrate a dispute that he has not agreed to
resolve by arbitration.‘ ‖ (Buckner, supra, at p. 142.) 2
IV.
DISCUSSION
Like the Courts of Appeal in Herbert, Gross and Mormile, we are persuaded that
section 1295, construed in light of its purpose, is designed to permit patients who sign
arbitration agreements to bind their heirs in wrongful death actions. There are several
reasons supporting this conclusion. First, it is clear that section 1295 was intended to
include the arbitration of wrongful death claims. As noted, section 1295, subdivision (a)
contemplates arbitration ―of any dispute as to professional negligence of a health care
provider.‖ ― ‗Professional negligence‘ ‖ is defined in section 1295, subdivision (g)(2) 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.‖ (Italics added.) Also as noted, section 1295 was part of MICRA‘s
efforts to control the runaway costs of medical malpractice, and that statute does so by

2
Other jurisdictions have been divided on the question whether the decedent‘s
arbitration agreement binds wrongful death plaintiffs. States that bind such plaintiffs
generally view wrongful death claims as derivative of the decedent‘s claim, or focus on
the public policy favoring arbitration agreements. (See Graves v. BP America, Inc. (5th
Cir. 2009) 568 F.3d 221, 223; Peltz v. Sears, Roebuck & Co. (E.D.Pa. 2005) 367
F.Supp.2d 711, 718; Briarcliff Nursing Home, Inc. v. Turcotte (Ala. 2004) 894 So. 2d
661, 665; Allen v. Pacheco (Colo. 2003) 71 P.3d 375, 379; Ballard v. Southwest Detroit
Hosp. (Mich.App. 1982) 119 Mich.App. 814, 819; In re Labatt Food Serv. (Tex. 2009)
279 S.W.3d 640, 644.) States that do not bind claimants generally emphasize the
independence of the wrongful death claim or the need for consent in creating binding
arbitration. (See Woodall v. Avalon Care Center — Federal Way, LLC (2010) 155
Wn.App. 919 [__ P.3d __] [2010 WL 1875512]; see also Lawrence v. Beverly Manor
(2009 Mo.) 273 S.W.3d 525, 527; Peters v. Columbus Steel Castings Co. (Ohio 2007)
115 Ohio St.3d 134, 136; Bybee v. Abdulla (Utah 2008) 189 P.3d 40 [emphasizing that
wrongful death actions are authorized by the state constitution].) None of these cases,
however, considered a medical malpractice arbitration statute of the kind found in section
1295.
12

promoting arbitration of malpractice disputes, while at the same time ensuring that
patients are adequately informed of the consequences of entering into arbitration
agreements. (Reigelsperger, supra, 40 Cal.4th at pp. 577-578.) The definition of
professional negligence to include wrongful death was used throughout all the statutes
enacted pursuant to MICRA. (See Bus. & Prof. Code, § 6146, subd. (c)(3); Civ. Code,
§ 3333.2, subd. (c)(2); Code Civ. Proc., § 340.5, subd. (2).) In light of the purpose and
scope of the statute, it is not surprising that section 1295 does not distinguish between
malpractice claims asserted by the patient or the patient‘s estate, and wrongful death
claims arising out of alleged malpractice committed against the patient: it is evident that
both sorts of claims are intended to be encompassed by agreements entered into pursuant
to section 1295. It is also clear that other provisions of MICRA apply to wrongful death
actions arising from medical malpractice. (See Yates v. Pollock (1987) 194 Cal.App.3d
195, 199 [Civ. Code, § 3333.2‘s $250,000 cap on medical malpractice noneconomic
damages applies in wrongful death actions].)3

3
At oral argument, Ruiz‘s counsel argued that by defining ―professional
negligence‖ in section 1295, subdivision (g)(2) to include an ―act or omission [that] is the
proximate cause of a personal injury or wrongful death,‖ the statute did not mean to
include wrongful death actions, but meant ―wrongful death‖ in a more colloquial sense to
refer to a survivor‘s action by the decedent‘s estate for the decedent‘s personal injury.
The dissenting opinion makes a similar argument. (Dis. opn. of Kennard, J., post, at
p. 4.) We are unpersuaded. A decedent‘s personal injury action does indeed survive the
decedent‘s death and may be brought by his or her estate. (§§ 377.20, 377.30.) The term
―wrongful death‖ is not used in the statutes defining a survivor action, but is reserved
exclusively to refer to the independent actions of the decedent‘s heirs for their own
injuries. (See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1269.)
―[W]hen the Legislature uses a term of art, a court construing that use must assume that
the Legislature was aware of the ramifications of its choice of language.‖ (Creutz v.
Superior Court (1996) 49 Cal.App.4th 822, 829.) Here, the term ―wrongful death‖ has a
well-established meaning — an independent action by a decedent‘s heirs for injuries
resulting from the decedent‘s death — and there is no indication the Legislature in using
this term in section 1295 intended to depart from its conventional meaning.
13

Given this purpose of authorizing the arbitration of medical malpractice and
wrongful death claims, we find persuasive the arguments advanced by the courts of
appeal discussed above that requiring potential wrongful death claimants to be signatories
to an arbitration agreement is highly problematic.
First, there is the matter of practicality: ―[I]t is obviously unrealistic to require the
signatures of all the heirs, since they are not even identified until the time of death, or
they might not be available when their signatures are required. Furthermore, if they
refused to sign they should not be in a position possibly to delay medical treatment to the
party in need.‖ (Herbert, supra, 169 Cal.App.3d at p. 725.)
Second, there are substantial privacy concerns, potentially ―authoriz[ing] an
intrusion into a patient‘s confidential relationship with a physician.‖ (Gross, supra, 206
Cal.App.3d at p. 782.) As we have recognized, the explicit right of privacy protected
under the California Constitution, article I, section 1, protects two classes of privacy
interests: ―(1) interests in precluding the dissemination or misuse of sensitive and
confidential information (‗informational privacy‘); and (2) interests in making intimate
personal decisions or conducting personal activities without observation, intrusion, or
interference (‗autonomy privacy‘).‖ (Hill v. National Collegiate Athletic Assn. (1994) 7
Cal.4th 1, 35.) Both types of privacy interests are implicated here. Requiring patients to
obtain the signatures of heirs would require to some degree the disclosure of confidential
medical information regarding the condition a patient seeks to treat.4 The disclosure of
such sensitive medical information is at the core of the protected informational privacy

4
As amici curiae California Medical Association et al. point out, even if the exact
nature of the condition being treated or the procedure being performed could be
concealed from relatives signing an arbitration agreement, merely the fact that a person is
being treated by a health care provider with a certain specialty easily discoverable
through an internet search could reveal significant sensitive information.
14

interest. (See id. at p. 41.) The need to have other parties‘ signatures before obtaining
medical treatment also fundamentally intrudes on the patient‘s interest in autonomy
privacy. (See American Academy of Pediatrics v. Lundgren (1997) 16 Cal 4th 307, 340.)
Because the Legislature contemplated the inclusion of wrongful death claims within
arbitration agreements drafted pursuant to section 1295, but obviously could not have
intended that the patient‘s heirs be signatories to these arbitration agreements, we
conclude the Legislature intended to permit patients to bind any heirs pursuing wrongful
death actions to these agreements.
Moreover, although section 1295 is merely a permissive statute allowing patients
and health care providers to enter into arbitration agreements with certain standards of
disclosure, we agree with the court in Mormile, supra, 21 Cal.App.4th at page 1515, that
if 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 that ―[n]o savings would be effected.‖ Stated in
other terms, section 1295, construed in light of its purpose, intends to give patients and
health care providers the option of entering into an agreement that will resolve all
medical malpractice claims, including wrongful death claims, by arbitration. Requiring
that wrongful death claimants be bound by arbitration agreements only when they
themselves have been signatory to them effectively forecloses that option for practical
and public policy reasons.
On the other hand, the purpose behind the wrongful death statute, section 377.60,
would not be undermined by construing section 1295 to permit the binding of wrongful
death litigants to arbitration. Although a wrongful death claim is an independent action,
wrongful death plaintiffs may be bound by agreements entered into by decedent that
limits the scope of the wrongful death action. Thus, for example, although an individual
15

involved in a dangerous activity cannot by signing a release extinguish his heirs‘
wrongful death claim, the heirs will be bound by the decedent‘s agreement to waive a
defendant‘s negligence and assume all risk. (Madison v. Superior Court (1988) 203
Cal.App.3d 589, 597; Scroggs v. Coast Community College Dist. (1987) 193 Cal.App.3d
1399, 1402-1403.) Wrongful death plaintiffs may be bound by defenses applicable to the
decedent if the statute giving rise to the defense is construed to intend such application.
(Horwich, supra, 21 Cal.4th 272, 287.)
It is true we have emphasized that arbitration derives its legitimacy from the fact
that the parties consent to resort to the arbitral forum rather than to litigation, with its
possibility of a jury trial. (Baker, supra, 202 Cal.App.3d at p. 291.) Such consent is
generally required. But as discussed, the case law has recognized a number of instances
in the health care setting in which agreements to arbitrate have bound nonsignatory third
parties, including children both born and not yet born, spouses, and employees who are
the beneficiaries of health care agreements between an employer and a group health plan.
(See Mormile, supra, 21 Cal.App.4th at p. 1511, and cases cited therein; County of
Contra Costa v. Kaiser Foundation Health Plan, Inc. (1996) 47 Cal.App.4th 237, 242–
243 (County of Contra Costa).) Although these cases rely on common law principles
such as fiduciary duty and agency, here the Legislature appears to have intended to have
created through statute for public policy reasons a capacity of health care patients to bind
their heirs to arbitrate wrongful death actions. To so bind wrongful death plaintiffs does
not in any sense extinguish their claims nor make them dependent on the outcome of the
decedent‘s estate‘s litigation, and does not even restrict the scope of the wrongful death
plaintiff‘s claims as in the above release cases, but merely requires that the claims ―be
resolved by a common, expeditious and judicially favored method.‖ (Madden, supra, 17
Cal.3d at p. 707.)
16

Plaintiffs point to our dictum that ―the right to trial by jury is considered so
fundamental that ambiguity in the statute permitting [jury trial] waivers must be ‗resolved
in favor of according to a litigant a jury trial.‘ ‖ (Grafton Partners v. Superior Court
(2005) 36 Cal.4th 944, 956.) They argue that section 1295 does not explicitly provide for
parties to an arbitration agreement pursuant to that section to bind their heirs who file
wrongful death claims, and that we should require such explicit statutory authorization
before requiring nonsignatories to be bound by arbitration agreements. As explained
above, section 1295, construed in light of its overall purpose, is sufficiently clear in its
inclusion of wrongful death claims to be understood as intending to permit patients to
bind their heirs to health care arbitration agreements.
Finally, plaintiffs suggested in their briefs, and more explicitly at oral argument,
that a rule permitting a person to bind his or her adult children to arbitration agreements
would violate the state constitutional right to a jury trial. (Cal. Const., art. I, § 16.) That
constitutional provision reads in pertinent part: ―In a civil cause a jury may be waived by
the consent of the parties expressed as prescribed by statute.‖ (Ibid.) In Madden, we
considered an employee‘s challenge to an arbitration agreement the Board of
Administration of the State Employee Retirement System (Board) entered into on behalf
of the employee as part of a larger agreement with a health plan for the provision of
group medical services. We noted that in the Meyers-Geddes State Employees‘ Medical
and Hospital Care Act (Gov. Code, former § 22751 et seq.), the Legislature entrusted to
the Board the authority to make group medical plans available to state employees, but
neither expressly granted nor withheld authority for the Board to agree to arbitration of
employees‘ malpractice claims. The Madden court concluded that the Board possessed
this authority because it acted as an agent and fiduciary on behalf of the employees.
(Madden, supra, 17 Cal.3d at at p. 709.) Madden further rejected the argument that the
state constitutional right to a jury trial was violated by this arrangement, or by the failure
17

to obtain from the employees a specific waiver of the jury trial right, recognizing that no
such explicit waiver was required in civil cases. (Id. at p. 713, fn. 12.)
The right to a jury trial under the California Constitution generally applies to
actions for damages that would have been tried to a jury at common law (see Asare v.
Hartford Fire Ins. Co. (1991) 1 Cal.App.4th 856, 867), and wrongful death actions fall
into that category. As Madden demonstrates, however, the Legislature may devise
reasonable rules in civil litigation to permit the delegation to another party of the power
to consent to arbitration instead of a jury trial. In Madden, the agency/principal
relationship made the delegation reasonable. In the present case, the Legislature by
statute has created the right of certain heirs to a wrongful death action and may also by
statute place reasonable conditions on the exercise of that right. As discussed, the
prerogative of patients to contract with health care providers regarding the terms of their
medical care without third party interference is itself a right of constitutional dimension.
The Legislature could reasonably delegate the authority to consent to arbitration of
medical malpractice claims arising from patients‘ medical treatment to the patients
themselves, particularly when such delegation furthers an important public policy.
Moreover, as observed in Herbert, supra, 169 Cal.App.3d at p. 726: ―Decedents are able
to bind their heirs through wills and other testamentary dispositions, so the concept is not
new or illogical.‖ As in Madden, we cannot say that under these particular circumstances
this reasonable delegation of authority to enter into arbitration agreements violates the
state constitutional right to a jury trial. 5

5
We emphasize that our holding is limited to binding wrongful death claimants,
who by statutory definition have a special relationship with the decedent, to arbitration
agreements. Our holding does not extend to third parties who are strangers to the
decedent and who file cross-claims in a medical malpractice case. (See County of Contra
Costa, supra, 47 Cal.App.4th 237.)
18

Turning to the present case, as noted, the arbitration agreement ―binds all parties
whose claims may arise out of or relate to treatment or service provided by the physician
including any spouse or heirs of the patient and any children‖ as well as specifically
providing for arbitration of wrongful death and loss of consortium claims.6 We hold that
the agreement can be enforced, and that a contrary holding would defeat Podolsky‘s
reasonable contractual expectations. We therefore reverse the Court of Appeal and order
a remand with directions that Podolsky‘s petition to compel arbitration be granted as to
all wrongful death claimants, including the adult children.

6
Of course, patients can bind their heirs to health care arbitration agreements only
to the extent that the agreements between these patients and their health care providers
are valid. Before this court, plaintiffs argue that the original arbitration agreement itself
was defective, relying on the recent case of Rodriguez v. Superior Court (2009) 176
Cal.App.4th 1461. Rodriguez held that there is no conclusive presumption that a health
care arbitration agreement conforming to section 1295 is valid, and that the presumption
may be rebutted by a showing that the agreement to arbitrate was not knowingly and
voluntarily made. (Rodriguez, supra, at pp. 1468-1469.) Focusing on the fact that the
arbitration agreement was signed under pressured circumstances, and that the signator,
because she died shortly after signing the arbitration agreement, never had the
opportunity afforded by section 1295, subdivision (c), to rescind the agreement within 30
days, the court held the agreement to be unlawful. (Rodriguez, supra, at pp. 1469-1470.)
Plaintiffs argue that Ruiz also had no opportunity to rescind the agreement within section
1295, subdivision (c)‘s window. Podolsky argues that Rodriguez was incorrectly
decided. We need not decide the issue. Plaintiffs never challenged the initial validity of
the arbitration agreement and, as the Court of Appeal noted, conceded that it applied to
the Wife. We decline to address this issue raised for the first time in this court.
19

V.
DISPOSITION
The judgment of the Court of Appeal is reversed and the cause is remanded with
directions to grant Podolsky‘s petition to compel arbitration of all wrongful death claims.
MORENO, J.

WE CONCUR: GEORGE, C. J.

BAXTER, J.
CHIN, J.
CORRIGAN, J.
SCOTLAND, J.*
___________________
*
Presiding Justice, Court of Appeal, Third Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
20

DISSENTING OPINION BY KENNARD, J.
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.
1

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 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, 2nd 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

1
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.
2

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 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
3

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 p. 18.) 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. 4, 13), concluding that ―public policy‖ supports

2
If a plaintiff dies, his or her estate may prosecute the claim.
4

allowing ―patients to bind their heirs to arbitrate wrongful death actions‖ (maj. opn., ante,
at p. 16). The majority is correct about the general purpose of MICRA. (See
Reigelsperger v. Siller (2007) 40 Cal.4th 574, 577-578.) 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 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 (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 [―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,
5

plaintiffs seek to recover for the loss they suffered personally by being deprived of their
father‘s companionship, care, and support.
The majority asserts ―if 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. 15, quoting Mormile v. Sinclair
(1994) 21 Cal.App.4th 1508, 1515.) 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.
III
For the reasons stated above, I dissent. I would affirm the Court of Appeal, which
in turn affirmed the trial court.
KENNARD, J.
6

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Ruiz v. Podolsky __________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 175 Cal.App.4th 227
Rehearing Granted

__________________________________________________________________________________

Opinion No. S175204
Date Filed: August 23, 2010
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: James Di Cesare

__________________________________________________________________________________

Attorneys for Appellant:
Cole Pedroza, Curtis A. Cole, Ashfaq G. Chowdhury, Schmid & Voiles, Susan Schmid and Denise H. Greer for
Defendant and Appellant.
Hooper, Lundy & Bookman, Mark E. Reagan and Katherine R. Miller for California Association of Facilities as
Amicus Curiae on behalf of Defendant and Appellant.
Tucker Ellis & West, E. Todd Chayet and Rebecca A. Lefler for California Medical Association, California Hospital
Association and California Dental Association as Amici Curiae on behalf of Defendant and Appellant.
Marion‘s‘ Inn, Kennedy P. Richardson, Yvonne M. Pierrou and Kathy Dong for Kaiser Foundation Health Plan,
Inc., as Amicus Curiae on behalf of Defendant and Appellant.

Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Defendant and
Appellant.

__________________________________________________________________________________

Attorneys for Respondent:
Center for Constitutional Litigation, John Vail; Cornelius P. Bahan, Inc., and Cornelius P. Bahan for Plaintiffs and
Respondents.

Counsel who argued in Supreme Court (not intended for publication with opinion):
Curtis A. Cole
Cole Pedroza
200 South Los Robles Avenue, Suite 300
Pasadena, CA 91101
(626) 431-2787

John Vail
Center for Constitutional Litigation, PC
777 Sixth Street N.W., Suite 520
Washington, DC 20001
(202) 944-2803

none