Limitations on the Applicability of MICRA: Avila v. Southern California Specialty Care

August 30, 2018

Limitations on the Applicability of MICRA: Avila v. Southern California Specialty Care

In the context of evaluating the enforceability of an arbitration agreement, the Court of Appeal of California recently provided guidance as to whether actions premised upon “neglect” under the Elder Abuse and Dependent Adult Civil Protection Act (Welfare and Institutions Code § 15600, et seq., “EADACPA”), including companion a claim for wrongful death, falls under the provisions of the Medical Injury Compensation Reform Act (“MICRA”). 

In Avila v. Southern California Specialty Care, Inc., 20 Cal. App. 5th 835 (2018), the Fourth Appellate District considered the trial court’s ruling denying a motion to compel arbitration.  In March 2015, eighty-seven-year-old Antonio Avila was admitted to a long-term acute care facility, suffering from various conditions including sepsis and chronic renal failure.  The day after Antonio began receiving care, his son Alex (who was Antonio’s agent pursuant to a power of attorney) was given a stack of documents to review and sign.  Among these documents was a “Voluntary Alternative Dispute Resolution Agreement.” Alex, his father’s agent, signed the agreement on Antonio’s behalf. Antonio died within five days of admission allegedly a result of the facility’s neglect, i.e., a dislodged feeding tube began infusing into the throat and/or esophagus instead of the stomach.  Antonio’s impaired gag reflex was unable to clear his lungs and as a result, he aspirated, causing cardiopulmonary arrest and rapid decline until his death. 

The complaint asserted causes of action for Negligence/Willful Misconduct, Elder Abuse, and Wrongful Death. The facility moved to compel arbitration pursuant to the “Voluntary Alternative Dispute Resolution Agreement”. Among other things, plaintiff argued that Alex had signed the arbitration agreement only as an agent, and not in his own capacity. Plaintiff also argued that the presence of his non-arbitrable wrongful death claim created the risk of inconsistent rulings.  The trial court denied the motion to compel arbitration concluding that the defendant had failed to show a valid arbitration agreement as to Alex. The trial court exercised its discretion under Code of Civil Procedure § 1281.2(c) and refused to order arbitration as to the claims governed by the arbitration agreement due to the risk of inconsistent rulings. Defendant appealed the court’s denial of the motion to compel arbitration.

In determining whether Alex was bound by the arbitration agreement, the Court of Appeal addressed the question of whether his wrongful death claim was subject to arbitration pursuant to Code of Civil Procedure § 1295. Section 1295, one of the provisions of MICRA, provides that although arbitration agreements must ordinarily be consensual, a patient who consented to arbitration may bind his or her heirs in an action for wrongful death. The California Supreme Court previously analyzed this issue in Ruiz v. Podolsky, 50 Cal. 4th 838 (2010), and concluded that all wrongful death plaintiffs are bound by arbitration agreements entered into pursuant to Section 1295, at least where the language of the arbitration agreement demonstrates an intent to bind. With that in mind, the Court of Appeal was thus presented with the question of whether Ruiz was controlling – that is, whether the action arose out of professional negligence, thus bringing it within the ambit of MICRA. 

In Avila, the Court of Appeal held that if the primary basis for a wrongful death claim is under the EADACPA (e.g., neglect, as here), then the action does not arise out of professional negligence and consequently, MICRA does not apply. According to the Court of Appeal, the plaintiffs are free to plead their case as they choose – within the limits of established law. Thus, even if he could also have pled a cause of action for medical malpractice, the fact that plaintiff only pled a cause of action for neglect under the EADACPA means that the action does not arise out of professional negligence and therefore, MICRA does not apply – even as to the wrongful death claim.

Almost as an aside, the Court of Appeal also noted that under California law, wrongful death claims are independent and not derivative claims. That being the case, and since Ruiz and Section 1295 did not apply here, arbitration could not be compelled as to plaintiff’s independent wrongful death cause of action unless plaintiff had agreed to arbitration in his individual capacity.

Under the standard set forth by the Avila court, if a plaintiff manages to plead a cause of action arising solely out of neglect or other acts governed by the EADACPA (as opposed to professional negligence), MICRA will not apply, even if the cause of action is one traditionally viewed as being covered by MICRA (such as a wrongful death claim). Additionally, if a cause of action is pled in that manner, an arbitration agreement purporting to bind the heirs of the patient will not be binding on the heirs unless there has been an independent agreement by the heirs to arbitration. What is not clear is whether a plaintiff may avoid MICRA simply by pleading “neglect” or other similar acts as the basis for negligence or wrongful death while omitting a cause of action under the EADACPA. The reasoning of Avila suggests that attempts to do exactly that may abound in future.

Corey Krueger is an associate in the Los Angeles office. He can be reached at 213.489.4411 or ckrueger@ericksenarbuthnot.com.