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Joseph v. Howard11/26/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Timothy C. Howard, M.D., appeals from the denial of his petition to compel arbitration of a sexual battery claim brought by a former patient, plaintiff Kristina Joseph. Dr. Howard contends the alleged sexual battery, which occurred during a preoperative physical exam, falls within the scope of the arbitration agreement between the parties. We agree and reverse.
I. FACTS
Joseph's complaint against Dr. Howard sets forth causes of action for assault, sexual battery, negligent and intentional infliction of emotional distress, and sexual harassment under the Unruh Civil Rights Act. All causes of action are based on the same central facts. For the sake of simplicity we refer to the five-count complaint as a "sexual battery claim."
According to Joseph's complaint, filed February 21, 2002, Dr. Howard practices medicine from offices in the Mt. Diablo Medical Center in Concord. On February 21, 2001, Joseph went to Dr. Howard's office for a preoperative examination, in connection with the orthopedic surgery on Joseph's right knee which Dr. Howard was scheduled to perform on February 23, 2001.
At the heart of Joseph's sexual battery claim is the following allegation of the complaint: "During the course of the February 21, 2001 examination, [Dr. Howard] stated to [Joseph] that he needed to perform a breast examination on [Joseph]. Notwithstanding the fact that [Joseph] was being treated by [Dr. Howard] only for orthopedic problems with her right knee, [Dr. Howard] proceeded to place his hands on both of [Joseph's] breasts and to feel both of [Joseph's] breasts with his hands. The aforesaid acts of [Dr. Howard] had no legitimate relation to the health care services provided by [Dr. Howard]."
When Joseph served her complaint on Dr. Howard, she also served a Notice of Intention to Commence Action Against Health Care Provider pursuant to Code of Civil Procedure section 364. That notice describes alleged professional negligence-i.e., medical malpractice-on Dr. Howard's part in the performance of the February 23, 2001 surgery. The notice does not mention any sexual battery or any allegedly improper touching of any part of Joseph's body. It is not clear whether Joseph pursued a separate claim against Dr. Howard specifically designated as "medical malpractice" and arising from the knee surgery.
Dr. Howard filed a petition to compel arbitration and expressly denied any wrongdoing. He initially relied on the one-page "Physician-Patient Arbitration Agreement" (Agreement) signed by the parties on February 6, 2001.
Article 1 of the Agreement reads as follows: "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 . . . ."
Article 2 of the Agreement, covering claims by spouses, heirs or unborn children of the patient, provides that, "It is the intention of the parties that this agreement bind all parties whose claims may arise out of or relate to treatment or service provided by the physician . . . . [ ] All claims for monetary damages exceeding the jurisdictional limit of the small claims court against the physician . . . must be arbit
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