Ramirez v. Superior Court

• Citation: 103 Cal.App.3d 746,163 Cal.Rptr. 223
• Parties: Corina RAMIREZ, a Minor, etc. et al., Petitioners, v. SUPERIOR COURT, SANTA CLARA COUNTY, Respondent; SAN JOSE HOSPITAL AND HEALTH CENTER, Real Party in Interest. Civ. 47011.
• Decision Date: 25 March 1980
• Court: California Court of Appeals

Page 223

163 Cal.Rptr. 223

103 Cal.App.3d 746

Corina RAMIREZ, a Minor, etc. et al., Petitioners, v. SUPERIOR COURT, SANTA CLARA COUNTY, Respondent;

SAN JOSE HOSPITAL AND HEALTH CENTER, Real Party in Interest.

Civ. 47011.

Court of Appeal, First District, Division 3, California.

March 25, 1980.

Hearing Denied June 25, 1980.

Arne Werchick, Werchick & Werchick, San Francisco, for petitioners.

Archie S. Robinson, Wines, Robinson, Wood & Anderson, San Jose, for real party in interest.

WHITE, Presiding Justice.

The question raised by this petition is whether a patient who has signed an admission agreement which complies with Code of Civil Procedure section 1295 (hereinafter section 1295) and which requires arbitration of all medical malpractice claims may resist arbitration on the ground that the agreement was not entered into knowingly and voluntarily. We conclude that the statute must be read to permit such a challenge in order to avoid constitutional defects. The trial court ordered arbitration without a clear determination of petitioners' claim. Therefore, we will issue the writ to annul the trial court order and permit reconsideration.

On October 19, 1977, Ms. Ramirez arranged to have her pediatrician examine Corina at defendant hospital. Corina, then nine months old, had had an eight-day history of elevated temperature, pulse, and respiration rate. At the emergency room, before her daughter was examined, Ms. Ramirez was handed a Spanish version of the arbitration agreement specified in section 1295. ¹ Ms. Barbara Meninger, the nurse who handled the admission of Corina Ramirez, stated in her declaration that she can speak Spanish although she understands it better than she can speak it. She did not say, however, whether she spoke Spanish to Ms. Ramirez. There were other people in the hospital available who did speak Spanish.

Nurse Meninger asked Ms. Ramirez to read the agreement. Although she did not know whether Ms. Ramirez read the agreement, Ms. Ramirez looked at it before signing it. Nurse Meninger made no attempt to explain the agreement. Nurse Meninger did state, however, that she did not tell Ms. Ramirez that the agreement had to be signed before her baby would be treated. Nurse Meninger stated that a copy of the agreement was given to Ms. Ramirez.

In her declaration, Ms. Ramirez stated that a hospital employee who spoke very little Spanish handed her a piece of paper and told her to sign it, where the "X" was located. No attempt was made to explain the paper or its meaning. Ms. Ramirez, worried about her daughter and believing she had to sign all the papers handed to her before her child would be examined, signed the arbitration agreement without reading it. She cannot remember whether she was given a copy of the agreement, but she has never read it.

Due to a misunderstanding, the pediatrician did not meet Ms. Ramirez and her daughter at the defendant hospital. Corina was examined by an emergency room physician who sent Corina home without diagnosing her illness. Corina had meningitis and is now seeking damages for blindness and paralysis allegedly due to the defendant's negligent failure to make a timely diagnosis.

Shortly after her action was filed, the defendants filed a petition to compel arbitration. The trial court granted the petition, stating in its order: "The arbitration agreement was presented to the mother of the minor plaintiff by a Spanish-speaking nurse in a Spanish language version which complies with the English language warning required by CCP 1295. There was never the slightest question that the patient was the child, and the mother was signing for the child. Although San Jose Hospital is not named in the printed portion, the nurse signed for the hospital and gave the mother a copy. That the mother was probably more concerned about treatment for her ill baby than the language of the document should not detract from the remedial and beneficial aspect of the legislative policy set forth in CCP 1295. The situation presented is that the baby is the patient, the hospital is providing treatment, the mother signs for the baby, and the contract contains appropriate warnings. CCP 1295 has removed the aura of adhesion from such contracts and is a legislative mandate for a new policy to direct these disputes out of the courts to a more appropriate forum. CCP 1295 is a product of social upheaval which, without limiting liability for tortious acts, regards the court-jury system for resolution of medical issues as unfair, etc., and the arbitration system as fair and knowledgeable. The courts must accept the new legislation." This petition seeks writ of mandate to vacate the trial court order compelling arbitration.

Arbitration is governed by Code of Civil Procedure section 1280, et seq. It is a highly favored forum for settling disputes, and courts should use every effort to enforce arbitration agreements. (Pacific Inv. Co. v. Townsend (1976) 58 Cal.App.3d 1, 9, 129 Cal.Rptr. 489.) Arbitration is expeditious, less costly, and lessens court congestion. (Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 706-707, 131 Cal.Rptr. 882, 552 P.2d 1178.) "A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract." (Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 479, 121 Cal.Rptr. 477, 480, 535 P.2d 341, 344.)

The powers of the superior court to pass upon a motion to compel arbitration are delineated in section 1281.2 which provides: "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (P) (a) The right to compel arbitration has been waived by the petitioner; or (P) (b) Grounds exist for the revocation of the agreement." Section 1281.2 requires the court to determine whether an agreement to arbitrate actually exists since a party cannot be compelled to arbitrate a matter she has not agreed to arbitrate. (Freeman, supra, at p. 480, 121 Cal.Rptr. 477, 535 P.2d 341; Wheeler v. St. Joseph Hospital (1976) 63 Cal.App.3d 345, 355, 133 Cal.Rptr. 775.) If the trial court erred in its determination that there was an agreement to arbitrate, an essential jurisdictional fact was missing and hence the order compelling arbitration constituted an abuse of discretion. (Wheeler, supra, at p. 355, 133 Cal.Rptr. 775.)

Prior to the passage of section 1295, it was settled that an arbitration agreement contained in a negotiated group health care contract, because it was negotiated between parties possessing parity of bargaining strength, could not be voided as to individual health plan members on adhesion contract principles. (See Madden v. Kaiser Foundation Hospitals, supra, 17 Cal.3d 699, 131 Cal.Rptr. 882, 552 P.2d 1178.) The same was not true, however, of agreements signed by individual patients in connection with admission to hospitals. In Wheeler v. St. Joseph Hospital, supra, 63 Cal.App.3d 345, 133 Cal.Rptr. 775, the Fourth District refused to enforce an "Arbitration Option" provision contained in a hospital admission form. To signify nonagreement with the arbitration provision, a patient could either place his initials in the space provided or notify the hospital within 30 days of discharge. The plaintiff-wife stated that her husband had signed the admission form without reading it, no one at the hospital called their attention to the arbitration provision, and the plaintiffs were never provided with a copy of the agreement. The trial court ordered arbitration when Mr. Wheeler and his wife brought a medical malpractice suit. After arbitration on the merits resulted in an award for the defendants, the plaintiffs sought to vacate the award inter alia on the trial court's alleged abuse of discretion in ordering arbitration.

On appeal, the court recognized that while arbitration is favored as a method for settling disputes, it is consensual in nature. When there is no agreement to arbitrate, an essential jurisdictional fact is missing and a court abuses its discretion if it compels arbitration. To compel arbitration there must be a voluntary agreement to arbitrate which is openly and fairly entered into. (Id., at p. 356, 133 Cal.Rptr. 775.)

The court found that the hospital's "Conditions of Admission" was a contract of adhesion since it was a standardized form drafted by the hospital on a take-it-or-leave-it basis, negating any realistic choice by the plaintiffs. The enforceability of such a contract then depends upon whether the terms are beyond the reasonable expectations of an ordinary person or are oppressive or unconscionable. This is a particular problem in the medical services context which presents distinct problems of the patients' awareness. Normally in a contract of adhesion, conspicuousness and clarity may not be enough. If the provision would defeat the strong expectations of the weaker party, it may be necessary to point out the provision and explain its meaning. This is especially important during admission to a hospital which is an "anxious, stressful, and frequently a traumatic experience." (Id., at pp. 359-360, 133 Cal.Rptr., at 786.) In its analysis the court noted that an emergency room patient cannot be expected to read, much less understand, a broad arbitration clause. Unless advised otherwise a patient will think she has no choice but to enter her physician's hospital and sign all the forms. (Id., at p. 360, 133 Cal.Rptr. 775.) While Madden held that an express waiver of a jury trial is not required, it is still a valuable right which should not be deemed to be waived lightly. (Id., at p. 361, 133 Cal.Rptr. 775.) The patient should be made aware of the arbitration provision and its...