LAW OFFICES
OF
ANDREA LYNN RICE
A Professional Corporation
12100 Wilshire Boulevard
OF
ANDREA LYNN RICE
A Professional Corporation
12100 Wilshire Boulevard
Suite 780
Los Angeles, California 90025
Telephone (310) 207-3717
Facsimile (310) 207-6785
LIABILITY UPDATE
February 15, 2008
Los Angeles, California 90025
Telephone (310) 207-3717
Facsimile (310) 207-6785
LIABILITY UPDATE
February 15, 2008
www.andreariceesq.com
In Titolo v. Cano 2007 Daily Journal D.A.R 17548, the Fourth Appellate District of the California Court of Appeal held that where a written arbitration agreement applies to “any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered,” it covers claims based on the allegedly unauthorized communication of a patient’s medical records and information to the patient’s disability insurer.
Marie L. Titolo (Titolo) sued her former treating physician, Luz Elena Cano, M.D. (Cano), for breach of fiduciary duty, violation of privacy rights, intentional interference with prospective economic advantage, and negligence. All of Titolo’s claims are based on Cano’s communications to Titolo’s disability insurer that Titolo was not disabled, but was a scam artist and a fraud, and Cano’s provision of Titolo’s medical file to the disability insurer. Cano petitioned the trial court to compel arbitration of Titolo’s claims. The trial court denied the petition on the ground Titolo’s claims against Cano were not within the scope of the parties’ written arbitration agreement. Cano appealed and the Court of Appeal reversed.
Titolo had signed a physician-patient arbitration agreement, which includes, in part, the following language which Code of Civil Procedure section 1295 requires be included in medical arbitration agreements: “It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently or incompetently rendered, will be determined by submission to arbitration as provided by California law, and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. Both parties to this contract, by entering into it, are giving up their constitutional rights to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. [¶] . . . [¶] All claims based upon the same incident, transaction or related circumstances shall be arbitrated in one proceeding. . . . [¶] . . . [¶] NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL.”
Titolo had a disability policy with Provident Life and Accident Insurance Company (Provident). On March 1, 2002, Titolo signed an authorization for use and disclosure of medical information, requesting and permitting Cano to disclose Titolo’s privileged and confidential medical information to Provident. On the same date, Titolo provided Cano with an attending physician’s statement and asked Cano to certify to Provident that Titolo was disabled. In June 2002, Cano informed Provident that Titolo was not disabled, but that her disability claim was a “scam” and she was a “fraud.” Cano also sent Provident a copy of Titolo’s medical file. Provident denied Titolo’s disability claim.
Titolo sued Cano for breach of fiduciary duty, violation of privacy rights, and intentional interference with prospective economic advantage, all based on Cano’s June 2002 communications with Provident. Cano filed a petition to arbitrate. The trial court denied the petition. The Court of Appeal reversed.
“To determine whether a contractual arbitration clause requires arbitration of a particular controversy, the controversy is first identified and the issue is whether that controversy is within the scope of the contractual arbitration clause.” (In re Tobacco Cases I (2004) 124 Cal.App.4th 1095, 1106.) The court found that Cano met her burden on this point. Once the existence of a valid arbitration clause has been established, “[t]he burden is on ‘the party opposing arbitration to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute.’ ” (Buckhorn v. St. Jude Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) “In other words, ‘an order to arbitrate a particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’ (Dryer v. Los Angeles Rams (1985) 40 Cal.3d 406, 414.)”
The court based its decision on “two equally important policies.” “First, resolution of disputes through the process of arbitration is favored in this state, and any doubt as to the meaning and interpretation of an arbitration agreement is resolved in favor of requiring arbitration.” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9; Bono v. David (2007) 147 Cal.App.4th 1055, 1062.) . . . [T]he second policy guiding our decision is that no dispute may be ordered to arbitration unless it is within the scope of the arbitration agreement. . . . [T]he terms of the specific arbitration clause under consideration must reasonably cover the dispute as to which arbitration is requested.”
The court pointed out that the arbitration agreement between Titolo and Cano covered “any dispute as to medical malpractice” and the agreement defined medical malpractice as “whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered.”
Are Cano’s actions in communicating with Titolo’s disability insurer and providing the insurer with Titolo’s medical records, all at Titolo’s request, within the provision of medical services by a physician to a patient? Yes. Communications between physicians and insurance companies regarding the diagnosis and treatment of patients are a necessary part of the provision of medical services to those patients. The practice of medicine today requires close interaction among medical professionals, their patients, health care insurers, and health management organizations. Cano obtained Titolo’s medical information by rendering medical services to her. Further, Titolo only requested that Cano communicate with Titolo’s insurer because Cano had provided medical services to her. Therefore, the acts of which Titolo complains are medical services provided to Titolo. Titolo herself acknowledged this reality; as explained post, she informed the trial court in another related case that the present case was based on Cano’s actions and services as a physician and arose out of actions related to Cano’s medical treatment of Titolo.
The court rejected Titolo’s argument that Titolo’s claims against Cano were not within the arbitration provision because Code of Civil Procedure section 1295, subdivision (g)(2) defines “professional negligence” as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death,” and Titolo did not assert a claim for a personal injury or wrongful death.
The dispositive question in this case is: what is the meaning of the language contained in the agreement to arbitrate between Titolo and Cano? The arbitration agreement itself covers “medical services” and its language is pursuant to and in full compliance with the requirements of section 1295. Titolo does not argue otherwise. Indeed, the failure to use the language specified by the statute could render the arbitration provision unenforceable. (See Reigelsperger v. Siller (2007) 40 Cal.4th 574, 578, 150 P.3d 764.) The arbitration agreement does not limit its application to cases involving personal injuries or wrongful death, and does not quote from or refer to section 1295, or mention the term “professional negligence.” We cannot read more into the parties’ arbitration agreement than it provides.
----Andrea Lynn Rice
In Titolo v. Cano 2007 Daily Journal D.A.R 17548, the Fourth Appellate District of the California Court of Appeal held that where a written arbitration agreement applies to “any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered,” it covers claims based on the allegedly unauthorized communication of a patient’s medical records and information to the patient’s disability insurer.
Marie L. Titolo (Titolo) sued her former treating physician, Luz Elena Cano, M.D. (Cano), for breach of fiduciary duty, violation of privacy rights, intentional interference with prospective economic advantage, and negligence. All of Titolo’s claims are based on Cano’s communications to Titolo’s disability insurer that Titolo was not disabled, but was a scam artist and a fraud, and Cano’s provision of Titolo’s medical file to the disability insurer. Cano petitioned the trial court to compel arbitration of Titolo’s claims. The trial court denied the petition on the ground Titolo’s claims against Cano were not within the scope of the parties’ written arbitration agreement. Cano appealed and the Court of Appeal reversed.
Titolo had signed a physician-patient arbitration agreement, which includes, in part, the following language which Code of Civil Procedure section 1295 requires be included in medical arbitration agreements: “It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently or incompetently rendered, will be determined by submission to arbitration as provided by California law, and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. Both parties to this contract, by entering into it, are giving up their constitutional rights to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. [¶] . . . [¶] All claims based upon the same incident, transaction or related circumstances shall be arbitrated in one proceeding. . . . [¶] . . . [¶] NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL.”
Titolo had a disability policy with Provident Life and Accident Insurance Company (Provident). On March 1, 2002, Titolo signed an authorization for use and disclosure of medical information, requesting and permitting Cano to disclose Titolo’s privileged and confidential medical information to Provident. On the same date, Titolo provided Cano with an attending physician’s statement and asked Cano to certify to Provident that Titolo was disabled. In June 2002, Cano informed Provident that Titolo was not disabled, but that her disability claim was a “scam” and she was a “fraud.” Cano also sent Provident a copy of Titolo’s medical file. Provident denied Titolo’s disability claim.
Titolo sued Cano for breach of fiduciary duty, violation of privacy rights, and intentional interference with prospective economic advantage, all based on Cano’s June 2002 communications with Provident. Cano filed a petition to arbitrate. The trial court denied the petition. The Court of Appeal reversed.
“To determine whether a contractual arbitration clause requires arbitration of a particular controversy, the controversy is first identified and the issue is whether that controversy is within the scope of the contractual arbitration clause.” (In re Tobacco Cases I (2004) 124 Cal.App.4th 1095, 1106.) The court found that Cano met her burden on this point. Once the existence of a valid arbitration clause has been established, “[t]he burden is on ‘the party opposing arbitration to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute.’ ” (Buckhorn v. St. Jude Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) “In other words, ‘an order to arbitrate a particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’ (Dryer v. Los Angeles Rams (1985) 40 Cal.3d 406, 414.)”
The court based its decision on “two equally important policies.” “First, resolution of disputes through the process of arbitration is favored in this state, and any doubt as to the meaning and interpretation of an arbitration agreement is resolved in favor of requiring arbitration.” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9; Bono v. David (2007) 147 Cal.App.4th 1055, 1062.) . . . [T]he second policy guiding our decision is that no dispute may be ordered to arbitration unless it is within the scope of the arbitration agreement. . . . [T]he terms of the specific arbitration clause under consideration must reasonably cover the dispute as to which arbitration is requested.”
The court pointed out that the arbitration agreement between Titolo and Cano covered “any dispute as to medical malpractice” and the agreement defined medical malpractice as “whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered.”
Are Cano’s actions in communicating with Titolo’s disability insurer and providing the insurer with Titolo’s medical records, all at Titolo’s request, within the provision of medical services by a physician to a patient? Yes. Communications between physicians and insurance companies regarding the diagnosis and treatment of patients are a necessary part of the provision of medical services to those patients. The practice of medicine today requires close interaction among medical professionals, their patients, health care insurers, and health management organizations. Cano obtained Titolo’s medical information by rendering medical services to her. Further, Titolo only requested that Cano communicate with Titolo’s insurer because Cano had provided medical services to her. Therefore, the acts of which Titolo complains are medical services provided to Titolo. Titolo herself acknowledged this reality; as explained post, she informed the trial court in another related case that the present case was based on Cano’s actions and services as a physician and arose out of actions related to Cano’s medical treatment of Titolo.
The court rejected Titolo’s argument that Titolo’s claims against Cano were not within the arbitration provision because Code of Civil Procedure section 1295, subdivision (g)(2) defines “professional negligence” as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death,” and Titolo did not assert a claim for a personal injury or wrongful death.
The dispositive question in this case is: what is the meaning of the language contained in the agreement to arbitrate between Titolo and Cano? The arbitration agreement itself covers “medical services” and its language is pursuant to and in full compliance with the requirements of section 1295. Titolo does not argue otherwise. Indeed, the failure to use the language specified by the statute could render the arbitration provision unenforceable. (See Reigelsperger v. Siller (2007) 40 Cal.4th 574, 578, 150 P.3d 764.) The arbitration agreement does not limit its application to cases involving personal injuries or wrongful death, and does not quote from or refer to section 1295, or mention the term “professional negligence.” We cannot read more into the parties’ arbitration agreement than it provides.
----Andrea Lynn Rice
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