Metropolitan News-Enterprise


Monday, May 6, 2002


Page 1


Patient’s Adult Heirs Not Bound by Medical Malpractice Arbitration Agreement, Court of Appeal Rules


By KENNETH OFGANG, Staff Writer/Appellate Courts


A patient’s agreement to arbitrate medical malpractice claims doesn’t prevent his adult children from suing for wrongful death, the Court of Appeal for this district ruled Friday.

A party to an arbitration agreement may bind his or her spouse or minor children, Justice Laurence D. Rubin wrote for Div. Eight. But none of the contract principles governing arbitration clauses permit a party to bind other adults, absent a principal-agent relationship, the justice wrote.

The decision affirmed Los Angeles Superior Court Judge Lois Anderson Smaltz’s ruling denying Dr. Mark Tamarin’s petition to compel arbitration of claims by Susan Buckner, Caroline Clifford, and Colleen Gillespie. The plaintiffs allege that Tamarin was negligent in performing surgery on their father, Paul Clifford, and that he tried to conceal his malpractice by asserting on the death certificate that Clifford died of a heart attack.

The plaintiffs, Rubin wrote, do not fall into any category which would bind them to a contract they didn’t personally sign.

“Their father entered into the arbitration agreement solely for his own medical care,” the justice wrote. “He was not their agent, they were not married to him, and they were not minors.  He therefore lacked the authority to waive their right to a jury trial of their claims.”

Rubin distinguished Herbert v. Superior Court (1985) 169 Cal.App.3d 718. That case involved the death, allegedly as a result of malpractice, of a married father of eight.

The decedent, his wife, and his five minor children were members of a health plan. To participate in the health plan, the decedent signed an agreement that included an arbitration clause purporting to bind his spouse and heirs.

The trial court ruled that the spouse and minor children were bound by the agreement, but the three adult children were not. On appeal, however, the court ruled that because the wrongful death claim belonged to the survivors jointly and was indivisible, and some of them were bound by the arbitration clause, all would have to arbitrate.

Those “practical considerations,” however, do not apply to Clifford’s heirs, none of whom are bound by the arbitration clause, Rubin said. “Herbert’s rationale is inapplicable here because respondents are not dividing their wrongful death claims between different forums,” the jurist reasoned.

The rule requiring ambiguities in arbitration agreements to be interpreted in favor of arbitration has no application, the justice went on to say, to these facts.

“The arbitration agreement was unambiguous and plainly purported to bind Clifford’s heirs,” Rubin explained. “The issue before us, however, is Clifford’s power to bind his adult daughters to arbitration.  For the reasons we have explained, he had no such authority.”

Attorneys on appeal were George E. Peterson of Bonne, Bridges, Mueller, O’Keefe & Nichols and Kathleen D. Marrero of Schmid & Voiles for the doctor, and Robert C. Eroen of Eroen & Eroen for the plaintiffs.

The case is Buckner v. Tamarin, B149385.


Copyright 2002, Metropolitan News Company