(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)
ARGUMENT
PLAINTIFFS SHOULD NOT BE COMPELLED TO ARBITRATE THEIR CLAIMS AGAINST DR. Black BECAUSE THE PHYSICIAN-PATIENT ARBITRATION AGREEMENT FAILS TO CONFORM WITH C.C.P. SECTION 1295. FURTHER, THE AGREEMENT IS A CONTRACT OF ADHESION AND IS UNCONSCIONABLE
Failure to Conform with C.C.P. Section 1295
California Code of Civil Procedure Section 1295 provides in pertinent part:
(a) Any contract for medical services which contains a provision for arbitration of any dispute as to professional negligence of a health care provider shall have such provision as the first article of the contract and shall be expressed in the following language: 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 right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
(b) Immediately before the signature line provided for the individual contracting for the medical services must appear the following in at least 10-point bold red type:
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. SEE ARTICLE 1 OF THIS CONTRACT.
(c) Once signed, such a contract governs all subsequent open-book account transactions for medical services for which the contract was signed until or unless rescinded by written notice within 30 days of signature …..
(e) Such a contract is not a contract of adhesion, nor unconscionable nor otherwise improper, where it complies with subdivisions (a), (b), and (c) of this section.
With C.C.P. Section 1295, the Legislature specified the manner in which the communication of significant contractual consequences must be made to a patient. A clear understanding of those consequences assures the enforceability of the agreement. Failure to contain the specific communication set forth under C.C.P. Section 1295 renders unenforceable the arbitration provisions of the contract. See, Rosenfield v. Superior Court (983) 143 Cal. App. 3d 198, 200, 202. (See Part 4 of 10.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.