Metropolitan News-Enterprise


Wednesday, September 9, 2008


Page 1


Court: Arbitrator’s Disclosure Gave Notice of Potential Bias


By STEVEN M. ELLIS, Staff Writer


A medical malpractice arbitrator’s disclosure that he served in a number of prior arbitrations involving the same healthcare provider and counsel gave the claimant sufficient notice of any potential bias despite the omission of specific details, the Fourth District Court of Appeal ruled yesterday.

Upholding an arbitration award in favor of Kaiser Permanente Health Plan Inc. on a woman’s claim that her breast cancer resulted from Kaiser’s failure to advise that she needed follow-up care after a mammogram, Div. One ruled that not every item of information that California law requires arbitrators to disclose constitutes a ground for disqualification.

Miriam Dornbirer filed the claim against Kaiser in 2004 after being diagnosed with breast cancer, which by then had metastasized to other organs since the 2001 mammogram.

The parties agreed that San Diego attorney Marc Adelman would serve as arbitrator, and Adelman disclosed pursuant to Code of Civil Procedure Sec. 1281.9 that he had served as an arbitrator in some disputes involving Kaiser, some disputes involving Lewis Brisbois Bisgaard & Smith—which was representing Kaiser—and some disputes involving both.

The statute requires that a neutral arbitrator disclose “all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial,” and Dornbirer made no objection to Adelman’s service.

At a hearing, witnesses for Kaiser testified that they had advised Dornbirer of the need to repeat the initial mammogram, which was corroborated by Dornbirer’s medical records. Adelman then ruled for Kaiser, finding that Dornbirer had not established a failure to provide her with sufficient notice of the need for follow-up care.

When San Diego Superior Court Judge Richard E.L. Struass confirmed the award and denied Dornbirer’s petition to correct or vacate it, Dornbirer appealed, contending that Adelman had failed to comply with the statutory disclosure requirements.

Pointing to the non-exhaustive list of required disclosures set forth in Sec. 1281.9, she argued that Adelman had not clearly disclosed how many times he had served as an arbitrator in matters in which Kaiser was a party, and that he had failed to provide the date, results, and names of other attorneys in matters involving Kaiser that he did disclose.

Dornbirer contended Adelman’s incomplete disclosures provided a ground for vacating the award under Sec. 1286.2, which compels courts to vacate an arbitration award if the arbitrator “failed to disclose…a ground for disqualification of which the arbitrator was then aware.”

However, Justice Cynthia Aaron wrote that Adelman’s “ambiguous” statement regarding the number of prior Kaiser arbitrations in which he had participated was not a failure to disclose a ground for disqualification because it “clearly put Dornbirer on notice that Adelman had a significant history of serving as an arbitrator in cases in which Kaiser was a party.”

Aaron also agreed with Kaiser that Sec. 1286.2 “cannot be read to nullify every arbitration award that stems from an arbitration in which the arbitrator failed to disclose all of the details of prior arbitrations, particularly where neither party challenged the arbitrator despite being aware that this information was not contained in the arbitrator’s disclosure,” because the statute “refer[s] to a failure to disclose the existence and nature of any relationship…, not the specifics of each such relationship.”

She continued:

“When a party has been informed of the existence of a prior relationship between the arbitrator and another party or an attorney, that party is aware of facts that would put the party on notice of the potential for bias…. It is only when the arbitrator fails to acknowledge the existence of such a relationship that a party is without sufficient information to question the impartiality of the arbitrator.”

Justices Judith L. Haller and Terry B. O’Rourke joined Aaron in her opinion.

Counsel for Kaiser, Lawrence A. Cox of Arnold & Porter in Los Angeles, called the case a proper application of the Code of Civil Procedure, but counsel for Dornbirer, David A. Kay of San Diego, told the MetNews his client was contemplating seeking rehearing or review by the California Supreme Court. Kay also said that while his client’s diagnosis remains the same, her prognosis appears better, adding that Dornbirer is still “alive and doing well.”

The case is Dornbirer v. Kaiser Foundation Health Plan, Inc., 08 S.O.S. 5402.


Copyright 2008, Metropolitan News Company