Jimenez v. Fiorentino

• Decision Date: 14 July 2010
• Docket Number: B216142,No. BC371352,BC371352
• Parties: D'ANGELO JIMENEZ, a Minor, etc., Plaintiff and Appellant, v. RANDY P. FIORENTINO et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

D'ANGELO JIMENEZ, a Minor, etc., Plaintiff and Appellant,

v.RANDY P. FIORENTINO et al., Defendants and Respondents.

B216142

No. BC371352

In The Court Of Appeal Of The State Of California Second Appellate District Division Three

Filed 7/14/10

Nathaniel J. Friedman for Plaintiff and Appellant.

Schmid & Voiles and Denise H. Greer for Defendants and Respondents.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County, David Minning, Judge. Affirmed.

INTRODUCTION

Plaintiff D'Angelo Jimenez appeals from a judgment confirming an arbitration award in favor of defendants on plaintiffs claims for medical malpractice and for wrongful life. We conclude that plaintiff has not shown that the trial court erroneously granted defendants' petition to compel arbitration. We reject plaintiffs claim that the provision of Code of Civil Procedure section 1281.2, subdivision (c)¹ requiring arbitration of medical malpractice disputes denies the equal protection of the law to medical malpractice plaintiffs. Because the arbitration agreement did not permit or require review of the merits of the arbitration award for errors of fact or law and did not otherwise alter the usual scope of review, this court does not review the sufficiency of the evidence to support the arbitration award. No error occurred because the arbitrators did not produce a statement of decision. Plaintiff has not shown that an order quashing plaintiffs subpoena on an expert witness whom no party had retained or listed as an expert witness was erroneous or showed the arbitrators' bias. Plaintiff has not shown that this case should be subject to the fee-shifting exception to the general rule that parties to arbitration should pay their pro rata share of expenses and fees of the neutral arbitrator and other arbitration expenses incurred or approved by the neutral arbitrator. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Defendant Randy P. Fiorentino, M.D., is a board-certified physician specializing in obstetrics and gynecology, licensed to practice medicine in the State of California. At relevant times Dr. Fiorentino was a partner of defendant Doctors of Women Health Center, Inc. Dr. Fiorentino began treating plaintiff Josefina Jimenez on September 11, 2001 for routine pre-natal care at about 26 weeks gestation. On that date Josefina Jimenez signed an arbitration agreement with Dr. Fiorentino. The agreement stated that it bound "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 any claim. In the case of any pregnant mother, the term 'patient' herein shall mean both the mother and the mother's expected child or children." The arbitration agreement further stated: "It is the intent of this agreement to apply to all medical services rendered any time for any condition."

The arbitration agreement also stated that Josefina Jimenez could revoke the agreement by written notice delivered to Dr. Fiorentino within 30 days of her signature. Josefina Jimenez did not revoke the arbitration agreement until she filed suit against Dr. Fiorentino.

On May 18, 2007, plaintiffs Josefina Jimenez, Luis Jimenez, and their infant son D'Angelo Jimenez filed a complaint for damages against Reliant Radiology Medical Group, Robert Benson, M.D., Doctors of Women Health Center, Inc., and Randy P. Fiorentino, M.D. Josefina Jimenez and Luis Jimenez later voluntarily dismissed their claims for professional negligence and loss of consortium. D'Angelo Jimenez (Jimenez), through his guardian ad litem and father Luis Jimenez, alleged causes of action for professional negligence and wrongful life against defendants. The complaint alleged that Josefina Jimenez employed defendants to diagnose and treat her pregnancy and to do all things necessary for her care and the care of her fetus, and that defendants negligently examined and cared for her while plaintiff D'Angelo Jimenez was in utero, failed to diagnose his condition, and negligently treated him so that he was born suffering from spina bifida. The complaint further alleged that defendants willfully or negligently examined and cared for Josefina Jimenez so that her November 9, 2004, ultrasound was negligently misinterpreted (failure to diagnose obvious fetal malformation), she was not offered the option of terminating the pregnancy, and D'Angelo Jimenez was born a Down Syndrome baby. The complaint alleged that but for defendants' negligence in the care, treatment, and advice to Josefina Jimenez, she would have chosen to terminate the pregnancy and D'Angelo Jimenez would not have been born.

On September 19, 2007, Dr. Fiorentino filed a petition to compel arbitration, on the ground that the physician-patient arbitration signed by Josefina Jimenez provided for arbitration of the dispute. Jimenez filed opposition to the petition to compel arbitration, arguing (1) that the arbitration agreement signed by Josefina Jimenez on September 11, 2001, was invalid because Dr. Fiorentino did not sign that arbitration agreement, which was signed by someone named "Patty;" and (2) that the physician-patient relationship between Dr. Fiorentino and Josefina Jimenez terminated after Josefina Jimenez delivered her child Adonis Jimenez on November 30, 2001, and went to Dr. Fiorentino for a postpartum checkup in January 2002, after which Josefina Jimenez did not return to Dr. Fiorentino's care for two and one-half years. In reply, Dr. Fiorentino argued that the arbitration agreement stated that it applied to all medical services rendered at any time for any condition, that Josefina Jimenez returned to Dr. Fiorentino for obstetrical care during her pregnancy in 2004 because Dr. Fiorentino had taken good care of her while pregnant with Adonis, that the parties' conduct showed their implied renewal of their physicianpatient relationship and the agreement to arbitrate, that Josefina Jimenez's return to Dr. Fiorentino for care in 2004 showed that a book account with Dr. Fiorentino remained open and had never closed, and that Josefina Jimenez never informed Dr. Fiorentino that she did not consider herself bound by the arbitration agreement she signed in 2001 and never revoked that agreement. Dr. Fiorentino also cited his deposition testimony that he had an ongoing physician-patient relationship with Josefina Jimenez between January 2001 and October 2004, and that when Josefina Jimenez returned to him in October 2004 it was not a new physician-patient relationship but was instead a continuation of their previous physician-patient relationship.

On November 15, 2007, the trial court granted the petition for an order requiring plaintiff to arbitrate the controversy.

On November 29, 2007, plaintiff filed a petition in this court seeking an alternative writ of mandate ordering the trial court to set aside its November 15, 2007, order granting the petition to compel arbitration and enter a new and different orderdenying that petition, or an order to show cause why it should not do so. This court denied the petition on December 18, 2007.

On December 10, 2007, the trial court, having previously granted the petition for an order requiring plaintiff to arbitrate the controversy, ordered the action between plaintiff and defendants Fiorentino and Doctors of Women Health Center, Inc. to binding arbitration.

In early January 2008, the parties stipulated that further activity in the arbitration of plaintiffs claims against Fiorentino and Doctors of Women would be suspended pending final disposition of plaintiffs claims against other defendants Reliant Radiology Medical Group and Robert Benson, M.D. After trial of plaintiffs case against Dr. Benson and Reliant Radiology Medical Group, the jury found that defendants Benson and Reliant Radiology Medical Group were not negligent in interpreting the November 9, 2004, ultrasound images of plaintiffs mother. Judgment was entered for defendants Benson and Reliant Radiology Medical Group on June 20, 2008.

Arbitration of plaintiffs claims against Fiorentino and Doctors of Women Health Center took place before a panel of three arbitrators from December 16 to 19, 2008. The arbitrators issued a unanimous interim award in favor of defendants and against plaintiff. The interim award stated that the arbitration panel considered all questions submitted for decision and found that defendants were not negligent, and ordered an award entered in favor of defendants.

On January 20, 2009, plaintiff filed a motion to vacate the arbitration award and an objection to the trial judge, Judge Teresa Sanchez-Gordon hearing further matters in the case. On February 10, 2009, defendants filed evidentiary objections to plaintiff's evidence proffered in support of the motion to vacate the arbitration award, and opposition to that motion. On February 18, 2009, Judge Sanchez-Gordon filed an order returning the matter to the supervising judge with a request that the case be assigned to another judicial officer. On March 9, 2009, the matter was reassigned to Judge David L. Minning.

On April 7, 2009, the trial court denied Jimenez's petition to vacate the arbitration award, confirmed the award pursuant to section 1286, and entered judgment on the award in favor of defendants. A formal order, signed by the trial judge, was filed on April 24, 2009.

Plaintiff Jimenez filed a timely notice of appeal.

ISSUES

Plaintiff Jimenez claims on appeal that:

1. The trial court committed reversible error by granting defendant Fiorentino's petition to compel arbitration;

2. The final sentence of section 1281.2, subdivision (c) is an unconstitutional denial of equal protection of law;

3. The arbitrators exceeded their powers by their finding of "no negligence" where the record contains no evidence that would sustain the arbitrators' finding and the record...