Stanford Law School - Robert Crown Law Library

Filed 2/8/07

IN THE SUPREME COURT OF CALIFORNIA

TERRY REIGELSPERGER et al.,
Plaintiffs
and
Respondents,
S131664
v.
) Ct.App.
3
C045534
JAMES M. SILLER,
Sutter
County
Defendant and Appellant.
Super. Ct. No. CVCS031466

We here consider whether an arbitration agreement, signed when a
chiropractor first treated a patient, applies to a medical malpractice claim arising
from treatment for a different condition two years later. We conclude that it does
because the agreement states it “is intended to bind the patient and health care
provider . . . who now or in the future treat[s] the patient . . . .” (Italics added.)
I. FACTS AND PROCEDURAL BACKGROUND
In August of 2000, plaintiff Terry Reigelsperger sought treatment from
chiropractor James M. Siller for severe pain in his lower back. Reigelsperger felt
much better after the treatment. Before leaving the office, he paid his bill and
signed an arbitration agreement.
The parties disagree over whether they contemplated an ongoing
doctor/patient relationship. Siller claims he told Reigelsperger to return for further
treatment if his symptoms persisted or recurred. Reigelsperger claims “there was
no expectation of further treatment. . . . no request, suggestion, or advisement that
1

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[he] would return or was expected to return.” Reigelsperger’s wife confirms
“[t]here was no discussion concerning any further treatment.”
Reigelsperger did not see Siller for two years. However, in September of
2002, he sought treatment for his cervical spine and shoulder. This latter
treatment is the subject of Reigelsperger’s suit.
Siller contends the arbitration agreement governs Reigelsperger’s claim.
Article 1 of the agreement required the parties to submit to arbitration “any dispute
as to medical malpractice.” (Italics added.) Article 2 provided that “[t]his
agreement is intended to bind the patient and the health care provider . . . who now
or in the future treat[s] the patient . . . .” (Italics added.)1 Reigelsperger also
signed an “informed consent” form that appeared on the reverse side of the
arbitration agreement. One of its provisions reads: “I intend this consent form to
cover the entire course of treatment for my present condition and for any future
condition(s) for which I seek treatment.” (Italics added.)
Siller sought to stay litigation and compel arbitration. The trial court
denied his petition and the Court of Appeal affirmed. We reverse the judgment of
the Court of Appeal.
II. DISCUSSION

Reigelsperger contends the arbitration agreement is not enforceable because
it does not comply with section 1295 of the Code of Civil Procedure.2 The
argument fails.

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,

1
As explained below (post, pp. 3-4), the language of article 1 is required by
section 1295 of the Code of Civil Procedure. The language of article 2 is not.
2
All further section references are to the Code of Civil Procedure unless
otherwise designated.
2

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§ 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
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.” (American Bank & Trust Co. v. Community Hospital
(1984) 36 Cal.3d 359, 371.)
The purpose of section 1295 is to encourage and facilitate arbitration of
medical malpractice disputes. (Pietrelli v. Peacock (1993) 13 Cal.App.4th 943,
946; Gross v. Recabaren (1988) 206 Cal.App.3d 771, 776 (Gross).) Accordingly,
the provisions of section 1295 are to be construed liberally. (See Preferred Risk
Mutual Ins. Co. v. Reiswig (1999) 21 Cal.4th 208, 215.)
To ensure that a patient understands that he is giving up his right to have a
malpractice claim tried in court, section 1295 requires uniform language for
arbitration agreements in medical services contracts.3 (Gross, supra, 206

3
Section 1295 provides in pertinent part:
“(a) Any contract for medical services which contains a provision for
arbitration of any dispute as to professional negligence of a health care provider
3

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Cal.App.3d at p. 776.) The arbitration agreement here contains the language of
section 1295. Therefore, it governs “all subsequent open-book account
transactions for medical services for which the contract was signed.” (§ 1295,
subd. (c).)4
The Court of Appeal held substantial evidence supported the finding that
the second treatment was not a “subsequent open-book account transaction[]”
within the meaning of section 1295, subdivision (c). Thus, article 1 of the
agreement did not apply to compel arbitration.
The Court of Appeal also concluded article 2 of the agreement did not
compel arbitration because it, too, only applied if the parties had an open-book
account relationship.5 This conclusion is wrong. The parties agreed in article 2

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 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.’

(b) 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.’ ”
4
Section 1295, subdivision (c) provides: “Once signed, such a contract
governs all subsequent open-book account transactions for medical services for
which the contract was signed until or unless rescinded by written notice within 30
days of signature. Written notice of such rescission may be given by a guardian or
conservator of the patient if the patient is incapacitated or a minor.”
5
A book account is a detailed statement of debit/credit transactions kept by a
creditor in the regular course of business, and in a reasonably permanent manner.
4

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that the agreement was “intended to bind the patient and the health care provider .
. . who now or in the future treat[s] the patient . . . .” This plain language applies
to require arbitration.
Regardless of whether the parties had an open-book account relationship
within the meaning of section 1295, subdivision (c), their obligation to arbitrate
under article 2 of their agreement would stand on its own. This agreement
contained the language section 1295 requires. Having satisfied the statute, the
parties remained free to adopt a broader arbitration agreement. “[N]othing in the
wording of [section 1295] states that medical malpractice arbitration agreements
may not also include additional provisions. In fact the wording of subdivision (a)
is indicative of this when it requires mandatory language to be set forth in the ‘first
article of the contract.’ The implication here is that other articles may be added
depending upon the needs of the parties.” (Coon v. Nicola (1993) 17 Cal.App.4th
1225, 1232.)
Here, the parties added article 2: “This agreement is intended to bind the
patient and the health care provider . . . who now or in the future treat[s] the
patient . . . .” (Italics added.) To contradict this objective manifestation of the
parties’ intent to arbitrate, Reigelsperger asserts that he had not intended to return
to Siller for treatment. However, his uncommunicated subjective intent is
irrelevant. (Gross, supra, 206 Cal.App.4th at p. 777; Hilleary v. Garvin (1987)
193 Cal.App.3d 322, 327.) As Witkin has pointed out, “mutual consent is
gathered from the reasonable meaning of the words and acts of the parties, and not

(§ 337a.) In one sense, an open-book account is an account with one or more
items unsettled. However, even if an account is technically settled, the parties
may still have an open-book account, if they anticipate possible future transactions
between them. (Cochran v. Rubens (1996) 42 Cal.App.4th 481, 485; Gross,
supra, 206 Cal.App.3d at p. 778; Mercantile Trust Co. v. Doe (1914) 26 Cal.App.
246, 253.)
5

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from their unexpressed intentions or understanding.” (1 Witkin, Summary of Cal.
Law (10th ed. 2005) Contracts, § 116, p. 155.) Regardless of whether
Reigelsperger had a present intention to return for treatment, he agreed that if he
did decide to do so, the arbitration provision in article 2 would apply to a future
dispute.
Alternatively, the Court of Appeal held that the phrase “now or in the future
treat[s]” “cannot reasonably be construed to bind the parties in perpetuity . . . .”
The answer to this objection is that, like other contracts, arbitration agreements
that do not specify a term of duration are terminable at will after a reasonable time
has elapsed. (Consolidated Theatres, Inc. v. Theatrical Stage Employees Union
(1968) 69 Cal.2d 713, 727-728; Zee Medical Distributor Assn., Inc. v. Zee
Medical, Inc. (2000) 80 Cal.App.4th 1, 10.) Reigelsperger did not try to terminate
the arbitration agreement.
The Court of Appeal also concluded its construction was supported by the
accompanying informed consent agreement, which provides in pertinent part: “I
intend this consent form to cover the entire course of treatment for my present
condition and for any future condition(s) for which I seek treatment.” (Italics
added.) The Court of Appeal reasoned, “[I]f the parties intended the arbitration
agreement to apply to treatment of future conditions, they would have said so, as
they did in the informed consent agreement. Because they did not, we find the
arbitration agreement does not apply to future treatment of a different condition
not contemplated by the parties at the time Reigelsperger signed the agreement in
the absence of an ongoing doctor-patient relationship.”
Logic and standard rules of construction undermine the Court of Appeal’s
reasoning. The informed consent agreement appears on page two of the
arbitration form. Reigelsperger signed both at the same time. The two agreements
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should, therefore, be construed together. (Civ. Code, § 1642.) 6 The consent
agreement states that it is intended to apply, not only to the “entire course of
treatment for my present condition,” but also to “any future condition(s) for which
I seek treatment.” The agreement’s own terms provide additional evidence that
the parties contemplated the possibility of future transactions for which they made
provision in article 2.
Having concluded that the parties are obligated to arbitrate under article 2
of their agreement, we need not reach the question whether they are also obligated
to do so under article 1.
DISPOSITION
We reverse the judgment of the Court of Appeal.
CORRIGAN, J.
WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.

6
Civil Code section 1642 provides: “Several contracts relating to the same
matters, between the same parties, and made as parts of substantially one
transaction, are to be taken together.”
7

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Reigelsperger v. Siller
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 125 Cal.App.4th 1008
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S131664
Date Filed: February 8, 2007
__________________________________________________________________________________

Court:

Superior
County: Sutter
Judge: Perry Parker

__________________________________________________________________________________

Attorneys for Appellant:

Law Offices of Rick A Cigel, Rick A. Cigel; Law Offices of Richard G. Reinjohn, Richard G. Reinjohn;
and Michael J. Schroeder for Defendant and Appellant.

Zuetel & Torigian and Kenneth R. Zuetel, Jr., for Cigna Healthcare of California, Inc., as Amicus Curiae
on behalf of Defendant and Appellant.

Horvitz & Levy, S. Thomas Todd and Bradley S. Pauley for California Medical Association, California
Dental Association and California Hospital Association as Amici Curiae on behalf of Defendant and
Appellant.
__________________________________________________________________________________

Attorneys for Respondent:

Rich, Fuidge, Morris & Iverson and Roland K. Iverson, Jr., for Plaintiffs and Respondents.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael J. Schroeder
1851 E. First Street, Suite 1160
Santa Ana, CA 92705
(714) 647-6488

Roland K. Iverson, Jr
Rich, Fuidge, Morris & Iverson
1129 D Street
Marysville, CA 95901
(530) 742-7371

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Opinion Information

Date:	Docket Number:
Thu, 02/08/2007	S131664

Disposition
Feb 8 2007	Opinion: Reversed

Dockets
Feb 22 2005	Petition for review filed   counsel for appellant James M. Siller
Feb 23 2005	Record requested
Mar 11 2005	2nd record request
Mar 14 2005	Answer to petition for review filed   In Sacramento by counsel for respondents.
Mar 14 2005	Request for depublication (petition for review pending)   counsel for appellant, James Siller
Mar 14 2005	Received Court of Appeal record   one doghouse
Mar 24 2005	Reply to answer to petition filed   Appellant James M. Siller
Apr 13 2005	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Apr 13 2005	Letter sent to:   Counsel re: Certification of Interested Entities or Persons.
May 9 2005	Certification of interested entities or persons filed   counsel for appellant, SILLER
May 12 2005	Request for extension of time filed   to file opening brief on the merits [appellant James Siller] asking to June 13, 2005.
May 18 2005	Extension of time granted   To June 13, 2005 to file appellant's opening brief on the merits. No further extensions will be granted.
Jun 14 2005	Appellant's opening brief filed   James M. Siller [40.1{b}
Jul 12 2005	Request for extension of time filed   to file Answer Brief on the Merits {Respondents Terry Reigelsperger, et al.} to August 13, 2005.
Jul 15 2005	Extension of time granted   to serve and file the Answer Brief on the Merits to and including August 13, 2005. No further extensions will be granted.
Aug 15 2005	Reply brief filed (case not yet fully briefed)   Respondents (Reigelsperger) by counsel.
Sep 2 2005	Request for extension of time filed   respondent James Siller reply brief/merits to request 30-day ext. [October 3, 2005]
Sep 9 2005	Extension of time granted   to serve and file the reply brief on the merits to and including October 6, 2005. No further extensions will be contemplated.
Sep 23 2005	Filed:   substitution of attorney Richard G. Reinjohn, for appellant (SILLER) with the Law Offices of Michael J. Schoroeder.
Oct 6 2005	Reply brief filed (case fully briefed)   appellant [SILLER]
Oct 6 2005	Request for judicial notice filed (granted case)   appellant [SILLER]
Nov 7 2005	Received application to file Amicus Curiae Brief   CALIFORNIA MEDICAL ASSOC., et al., in support of Appellant (Siller).
Nov 10 2005	Permission to file amicus curiae brief granted   CALIFORNIA MEDICAL ASSOC., CALIF. DENTAL ASSOC.,CALIF. HOSPITAL ASSOC., in support of apppellant. Answer due within 20 days.
Nov 10 2005	Amicus curiae brief filed   CALIFORNIA MEDICAL ASSOCIATION, et al., in support of appellant.
Dec 19 2005	Change of contact information filed for:   Respondents attorney's firm Rich, Fuidge, Morris, & Iverson changed to Rich, Fuidge, Morris & Lane, Inc.
Jun 5 2006	Received application to file Amicus Curiae Brief   Cigna Healthcare of California in support of Dr. James M. Siller. Kenneth R. Zuetel, Jr. Counsel
Jun 9 2006	Permission to file amicus curiae brief granted   Cigna Healthcare of California in support of Dr. James M. Siller. Kenneth R. Zuetel, Jr. Counsel
Jun 9 2006	Amicus curiae brief filed   Cigna Healthcare of California in support of Dr. James M. Siller. Kenneth R. Zuetel, Jr. Counsel
Nov 7 2006	Case ordered on calendar   Tuesday, December 5, 2006, at 9:00 a.m., in Los Angeles
Nov 28 2006	Request for judicial notice granted   Appellant's request for judicial notice filed on October 6, 2005, is granted.
Dec 5 2006	Cause argued and submitted
Feb 7 2007	Notice of forthcoming opinion posted
Feb 8 2007	Opinion filed: Judgment reversed   We reverse the judgment of the Court of Appeal Opinion by: Corrigan, J. -----joined by: Geroge, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, J.J.
Apr 19 2007	Remittitur issued (civil case)
Apr 24 2007	Received:   Receipt for Remittitur from CA3.

Briefs
Jun 14 2005	Appellant's opening brief filed
Aug 15 2005	Reply brief filed (case not yet fully briefed)
Oct 6 2005	Reply brief filed (case fully briefed)
Nov 10 2005	Amicus curiae brief filed
Jun 9 2006	Amicus curiae brief filed

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