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Cochran v. Rubens2/2/1996
KREMER, P. J.
Plaintiffs Richard Cochran (Cochran) and his wife Illa May Cochran filed a complaint against defendant Lawrence Rubens and others seeking recovery of damages for Cochran's personal injury and his wife's loss of consortium allegedly suffered as a result of defendants' professional negligence. Rubens appeals from the court's order denying his petition to stay the action and compel arbitration of plaintiffs' claims against him. Rubens contends that pursuant to Code of Civil Procedure section 1295, subdivision (c), the arbitration agreement Cochran signed when he saw Rubens in 1990 governs the treatment Rubens provided him in 1993 (resulting in the instant litigation) because Rubens maintained an open book account for Cochran between his 1990 and 1993 visits. We conclude there is substantial evidence to support the court's implied finding that Cochran's book account closed after his 1990 visit. Accordingly, we affirm the order denying Rubens's petition to compel arbitration.
FACTUAL AND PROCEDURAL BACKGROUND
In July 1990, Cochran's family physician referred Cochran to Rubens, an orthopedic specialist, for a consultation and evaluation concerning pain in his left ankle, which Cochran had fractured in 1974 or 1975. Rubens saw Cochran on July 27, 1990. Prior to being examined, Cochran signed an arbitration agreement. Rubens diagnosed Cochran as suffering from posttraumatic degenerative joint disease and gave him an injection of cortisone, an anti-inflammatory steroid. Rubens also discussed the possibility of surgery in the event the steroid injection failed to improve Cochran's symptoms. Rubens's report stated Cochran would return in two weeks for a progress evaluation.
Cochran felt the cortisone injection was not helpful and did not want to undergo surgery. He chose not to return to Rubens for the two-week follow-up visit, and had no further contact with Rubens until April of 1993. Cochran's insurance paid a portion of Rubens's fees for Cochran's July 1990 evaluation and treatment, and Cochran paid the remaining charges in 1990.
In March 1993, Cochran's family physician referred Cochran to Rubens for another evaluation of Cochran's left ankle. Rubens saw Cochran on April 12, 1993 and performed the previously recommended surgery on April 20, 1993.
Cochran and his wife filed the instant action in June 1994, alleging negligence during Cochran's ankle surgery on the part of Rubens and the other defendants resulted in damage to Cochran's vision and central nervous system. After answering the complaint, Rubens filed a petition to compel arbitration based on the July 1990 arbitration agreement. The court issued a telephonic ruling granting the petition, but reversed the telephonic ruling after hearing oral argument. The court ultimately found the 1990 arbitration agreement was not effective when Rubens performed the surgery in 1993.
Discussion
I. Standard of Review
Rubens contends his petition to compel arbitration is subject to de novo review because it involves interpretation of a written instrument and, further, because it involves the interpretation of a statutory scheme. We disagree.
The issue before the trial court was whether, pursuant to section 1295, subdivision (c), the 1990 arbitration agreement governed the medical services Rubens performed in 1993. Section 1295, subdivision (c) provides that an arbitration agreement which is part of a contract for medical services, " nce signed, . . . 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."
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