Avila v. Southern California Specialty Care, Inc. (Feb. 26, 2018, G054269) __ Cal.App.5th __ [2018 WL 1044668]

Heir suing hospital for wrongful death can evade MICRA statute requiring arbitration by pleading elder abuse claim.

Alex Avila sued Kindred Hospital for negligence and elder abuse, on behalf of his deceased father, and for wrongful death.  Avila alleged that his father died due to the hospital’s negligence, willful misconduct, and neglect in connection with a dislodged feeding tube that caused aspiration and cardiopulmonary arrest.  Avila had previously executed a Voluntary Alternate Dispute Resolution (ADR) Agreement under a statutory power of attorney after admitting his father to the hospital.  The hospital petitioned to compel arbitration pursuant to the ADR agreement.  The trial court denied the petition.  The trial court first ruled that the ADR agreement did not apply to Avila’s wrongful death claim, and then exercised its discretion, under Code of Civil Procedure section 1281.2, subdivision (c), to deny arbitration of the remaining negligence and elder abuse claims to avoid the risk of inconsistent rulings.  The hospital appealed.

The Court of Appeal affirmed.  First, it rejected the hospital’s argument that the Federal Arbitration Act (FAA) rather than California law applied, holding that the procedural aspects of the FAA did not apply in these state court proceedings because the ADR agreement did not state it was governed by the FAA.  Second, without citing Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 88 [holding that MICRA applies broadly to all negligence claims regarding tasks that are “integrally related to the medical treatment and diagnosis of the patient”] or cases such as Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 347 [holding that, when a plaintiff “asserts a claim against a health care provider on a legal theory other than professional negligence, courts must determine whether the claim is nonetheless based on the health care provider’s professional negligence, which would require the application of MICRA”], the Court of Appeal held that Avila had successfully evaded the MICRA arbitration statute (Code Civ. Proc., § 1295 [patient’s arbitration agreement is binding on heirs who sue for wrongful death]) by pleading an elder abuse claim.  While Avila’s complaint included allegations that could have been categorized either as professional negligence or elder abuse, the court held the fact Avila “could have also pleaded a claim for medical malpractice . . . is irrelevant.”  Third, the Court of Appeal held that Avila was not bound by the ADR agreement he signed as his father’s agent because there was no evidence he had intended to waive a jury trial on his personal claims.  Finally, the court held that the trial court did not abuse its discretion by refusing to compel arbitration of the negligence and elder abuse claims because there existed a strong possibility of inconsistent rulings.

This bulletin was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission.