Gross v. Recabaren

• Decision Date: 16 December 1988
• Docket Number: No. B031644,B031644
• Citation: 206 Cal.App.3d 771,253 Cal.Rptr. 820
• Court: California Court of Appeals Court of Appeals
• Parties: Steven GROSS and Nancy Gross, Plaintiffs and Respondents, v. JAMES A. RECABAREN, M.D., INC., and H. William Fister, M.D., Inc., Defendants and Appellants.

Page 820

253 Cal.Rptr. 820

206 Cal.App.3d 771

Steven GROSS and Nancy Gross, Plaintiffs and Respondents, v. JAMES A. RECABAREN, M.D., INC., and H. William Fister, M.D., Inc., Defendants and Appellants.

No. B031644.

Court of Appeal, Second District, Division 2, California.

Dec. 16, 1988.

Schmid & Grogman, Susan H. Schmid, and Thelen, Marrin, Johnson & Bridges, Curtis A. Cole and Mary R. Barnett, Los Angeles, for defendants and appellants.

Bruce G. Fagel, Beverly Hills and Evan A. Gould, Studio City, for plaintiffs and respondents.

GATES, Associate Justice.

Defendants H. William Fister, M.D., Inc. and James A. Recabaren, M.D., Inc., the professional corporations of surgical oncologists H. William Fister and James A. Recabaren, appeal from an order denying their petition to stay further proceedings and compel arbitration of the medical malpractice action instituted by their patient Steven Gross and his wife Nancy Gross, who sought to recover damages for loss of consortium. They contend:

"I. This court is not bound by the superior court's error in construction of the arbitration agreement. II. This dispute over the fifth of Mr. Gross' seven surgeries falls squarely within the scope of the arbitration agreement because the surgery was performed during the course of a continuous physician-patient relationship. III. The physicians have a right to arbitrate this case."

The pertinent facts are undisputed. On August 16, 1984, Steven Gross accompanied his wife, who had been a patient of Dr. Fister for 2- 1/2 years, to Fister's office for her checkup. During that visit, Gross himself arranged for the excision of a mole from the left side of his scalp and a cyst from the base of his scalp. These two procedures were performed on August 16 and August 23, respectively, but only after Gross had been asked to, and did, sign a written agreement to submit to arbitration "any dispute as to medical malpractice." Biopsies disclosed both growths to be benign and Gross received no further treatment for these conditions after the last sutures were removed on September 11, 1984. At that time, Dr. Fister entered the following notation on Gross' patient chart: "He is to return as necessary."

Gross next presented himself at Dr. Fister's office 18 months later to have the doctor examine a lesion on his nose. Although the condition was originally diagnosed as a slightly infected cyst and treated with medication, after two biopsies were performed, it was identified as grade III squamous cell carcinoma. On May 5, 1986, Dr. Fister's associate, Dr. Recabaren, performed the radical surgery which is the subject of the underlying medical malpractice action. Two additional nasal biopsies performed during the subsequent 8-month period revealed no further malignancies.

In their opposition to appellants' motion, respondents sought to demonstrate the arbitration agreement had been intended to cover only those services rendered contemporaneous to its signing, i.e., the minor surgeries performed on August 16 and 23, 1984. In support of their position, they submitted the declaration of Steven Gross who averred in relevant part:

"6. The sutures [for the first two surgeries] were removed by September 1984 and I paid for these minor procedures soon thereafter. There were no plans to return to Dr. Fister and our medical relationship ended at that time.

"...

"8. I did not see Dr. Fister again until over 18 months later, when I was diagnosed as having cancer and operated on by Dr. Recabarren [sic ] on May 5, 1986.

"9. The cancer diagnosis and the cancer surgery on May 5, 1986, was in no way related to the removal of the mole and cyst from my scalp that Dr. Fister removed in August, 1984."

The trial court, persuaded by respondents' argument, issued a statement of decision which concluded: "The agreement signed by Steven Gross is not applicable to his claims as stated in the Complaint because those conditions are severable from those conditions for which the Agreement was signed and due to the length of time between the signing of the agreement and the claimed malpractice. During that period of time the Doctor/Patient relationship had ended and any Open Book Account between the parties had been closed. The agreement in question was signed only for minor surgical procedures and the alleged malpractice was not a variation of nor a followup procedure."

This state has a strong public policy favoring arbitration over litigation as a speedy and relatively inexpensive means of dispute resolution which eases court congestion. (Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 322, 197 Cal.Rptr. 581, 673 P.2d 251; Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 706-707, 131 Cal.Rptr. 882, 552 P.2d 1178; Hilleary v. Garvin (1987) 193 Cal.App.3d 322, 325, 238 Cal.Rptr. 247.) This mechanism took on added significance during the 1970's with the advent of the so-called "medical malpractice crisis."

On May 19, 1975, the Governor convened an extraordinary session of the Legislature (Governor's Proclamation to Leg. (May 16, 1975), 10 Senate J. (1975-1976 Second Ex.Sess.) pp. 2-3), "to deal exclusively with the formulation of a legislative solution to the 'crisis.' " (7 Pacific L.J. 545 (1976).) Among the items the Governor requested the Legislature consider was "... Voluntary binding arbitration in order to quickly and fairly resolve malpractice claims while maintaining fair access to the courts." (Governor's Proclamation to Leg. (May 16, 1975), 10 Senate J. (1975-1976 Second Ex.Sess.) p. 2.)

During this session the Legislature passed and the Governor approved the Medical Injury Compensation Reform Act (MICRA) (Stats.1975, Second Ex.Sess. 1975-1976, chs. 1, 2, p. 3949-4007) of which Code of Civil Procedure section 1295 is a part. Section 1295 "encourages and facilitates the arbitration of medical malpractice disputes by specifying uniform language to be used in binding arbitration contracts to assure that the patient knows what he is signing and what its ramifications are." ¹ (Keene, California's Medical Malpractice Crisis, A Legislator's Guide to the Medical Malpractice Issue, at p. 31; emphasis in original.)

The agreement in the instant case was drafted pursuant to section 1295 and no claim is made that it is in any manner deficient. Article I of the document sets forth the mandatory language required by subdivision (a) and article III additionally warns of the agreement's applicability to "any claim in tort, contract or otherwise." The admonition required by subdivision (b) immediately precedes the signature lines. Nonetheless, as typically occurs (Hilleary v. Garvin, supra, 193 Cal.App.3d at p. 326, 238 Cal.Rptr. 247), the agreement did not expressly delineate the scope of the services contracted for, other than to state "H. William Fister, M.D., Inc. agrees to provide to the undersigned patient medical, surgical and related health care services in consideration for the payment on a fee for service basis." ²

Because the scope of arbitration is a matter of agreement between the parties, " '[t]he court should attempt to give effect to [their] intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made [citation].' [Citation.]" (Victoria v. Superior Court (1985) 40 Cal.3d 734, 744, 222 Cal.Rptr. 1, 710 P.2d 833.) Any doubts concerning the scope of arbitrable issues must be resolved in favor of arbitration. (Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street, supra, 35 Cal.3d at p. 323, 197 Cal.Rptr. 581, 673 P.2d 251.)

It is manifest that the contract signed by Steven Gross cannot, on its face, reasonably be said to be limited only to those services provided contemporaneous to its signing. While we need not here attempt to define its full reach, we are satisfied that, at the very least, it was intended to encompass those situations where Gross, in the course of an ongoing doctor-patient relationship, sought treatment for a condition of the type which initially brought him to Dr. Fister's office. As we stressed in Hilleary v. Garvin, supra, 193 Cal.App.3d at p. 326, 238 Cal.Rptr. 247, "To impose upon a physician, during a continuous doctor-patient relationship, the extra burden of having to renew the arbitration agreement each time there is a variation in treatment or ailment would be impractical, and would frustrate the purpose of the statute, which is to facilitate, not emasculate, the arbitration process."

Although the course of treatment Gross received in 1984 and 1986 differed, in each instance he sought medical services for the treatment of similar problems, i.e., potentially malignant skin lesions on his face and head. Fortunately, the mole and cyst for which he initially sought aid were benign, necessitating only minor surgery. The nasal cyst, on the other hand, was malignant and a more radical approach was undertaken.

Apart from Steven Gross' statements concerning his uncommunicated subjective intent, which were, of course, irrelevant (Hilleary v. Garvin, supra, 193 Cal.App.3d at p. 327, 238 Cal.Rptr. 247), there was simply no objective evidence from which a reasonable person could conclude either of the parties viewed their relationship as having terminated in 1984. The mere fact that they did not anticipate Gross would return in the absence of further dermatological problems requiring the attention of an oncologist does not demonstrate otherwise. Obviously, Gross hoped additional treatment would not be necessary. When it was, however, he once again sought Dr. Fister's services. This was persuasive evidence of an ongoing relationship. Likewise, the manner in which Steven Gross' medical and billing records were maintained by Dr. Fister was indicative of a continuing association.

Code of Civil Procedure section 1295, subdivision (c) expressly provides that "Once signed, such a...