SCHIRMER v. FISHER III

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Court of Appeal, Fourth District, Division 3, California.

Melissa SCHIRMER et al., Plaintiffs and Respondents, v. Edward H. FISHER III et al., Defendants and Appellants.

No. G009878.

Decided: October 18, 1991

Horton Barbaro & Reilly, Jay Cordell Horton and William O. Humphreys, Santa Ana, for plaintiffs and respondents. Schmid, Norek & Miller, Susan H. Schmid, Gordon T. Ownby, Los Angeles, La Follette, Johnson, De Haas & Fesler and Dennis Ames, Santa Ana, for defendants and appellants.

OPINION

Edward Fisher III, M.D., and the Southern Orange County Orthopaedic Medical Group, Inc. (Fisher) appeal the trial court's denial of their petition to compel arbitration of the medical malpractice claim of Melissa Schirmer and the accompanying claim for loss of consortium by her husband, Ernie.   We find the arbitration agreement signed by Schirmer did not apply to her dispute with Fisher and, accordingly, affirm the trial court's order.

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On December 2, 1986, Melissa Schirmer began treatment with Dr. Mark Ishimaru, then a sole practitioner, for her lower back pain;  at her initial visit, she signed an arbitration agreement with “Mark S. Ishimaru, M.D., a Professional Corporation.”   The agreement provides, “It is the intention of the parties that this agreement bind all parties whose claims may arise out of or relate to treatment or services provided by the physician including any spouse or heirs of the patient and the physician, and his or her association, corporation, partnership, employees and agents, for any claims, including without limitation, fee disputes and claims for loss of consortium, wrongful death, emotional distress or punitive damages․”

Schirmer was hospitalized and treated by Ishimaru until December 22, when she was discharged.   She returned for a follow up visit on March 10, 1987.   Fourteen months later, on May 10, 1988, Schirmer returned to Ishimaru's office.   In the interim, Ishimaru had changed his corporate name to “Southern Orange County Orthopaedic Medical Group, Inc.” and had employed Fisher.   Ishimaru did not treat Schirmer this time but referred her to Fisher, who performed back surgery and rendered postoperative care until August 1988.

In November 1988, Schirmer filed a complaint for medical malpractice against Fisher and the medical group; 1  they responded by petitioning to compel arbitration pursuant to Schirmer's agreement of December 1986.   Fisher argued that the agreement expressly covered future services and bound Schirmer to arbitrate disputes arising out of services provided by Ishimaru's employees.   Schirmer argued the agreement was limited to the physician and his corporation as it existed at the time of the agreement;  she submitted a declaration stating she did not contemplate future employees or the “reincorporation” of Ishimaru's practice.   The court denied both the motion and Fisher's request for a statement of decision.

 On a motion to compel arbitration, the court shall order arbitration “if it determines that an agreement to arbitrate the controversy exists․”  (Code Civ.Proc., § 1281.2.)   The parties agree this case presents no factual conflict; 2  accordingly, we review the arbitration agreement de novo.  (Hilleary v. Garvin (1987) 193 Cal.App.3d 322, 326, 238 Cal.Rptr. 247.)

 It is clear Schirmer agreed to arbitrate her controversies with Ishimaru, but did she so agree with respect to Fisher and the medical group?   We think not.  “In determining the scope of an arbitration clause, ‘[t]he court should attempt to give effect to the parties' intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made [citation].’ ”  (Victoria v. Superior Court (1985) 40 Cal.3d 734, 744, 222 Cal.Rptr. 1, 710 P.2d 833, quoting Weeks v. Crow (1980) 113 Cal.App.3d 350, 353, 169 Cal.Rptr. 830.)   When Schirmer signed the arbitration agreement, there was no medical group because Ishimaru was in practice by himself.   Presumably he employed office staff and assistants, but Schirmer had no reason to believe she would be treated by any other doctor.   These circumstances were markedly different from those existing when she returned to Ishimaru's office fourteen months later.

The significant fact here is not the passage of time between visits or the variation in ailments.  (See Gross v. Recabaren (1988) 206 Cal.App.3d 771, 253 Cal.Rptr. 820 and Hilleary v. Garvin, supra, 193 Cal.App.3d 322, 238 Cal.Rptr. 247.)   Rather, the total change in the physician-patient relationship after Schirmer signed the arbitration agreement leads us to conclude it does not cover Fisher's treatment.  “[J]udicial enthusiasm for alternative methods of dispute resolution must not in all contexts override the rules governing the interpretation of contracts.  [¶] Certain basic principles of contract interpretation are applicable.   First, ‘the policy favoring arbitration cannot displace the necessity for a voluntary agreement to arbitrate.’  [Citations.]   In addition, ‘[h]owever broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract.’  [Citation.]”  (Victoria v. Superior Court, supra, 40 Cal.3d at p. 739, 222 Cal.Rptr. 1, 710 P.2d 833.)   The agreement does not reflect an intention by either party to cover medical treatment other than that rendered by Ishimaru.

The judgment is affirmed.   Schirmer is entitled to costs on appeal.

FOOTNOTES

1.   She also sued Raymond Zarins, M.D., and Mission Hospital Regional Medical Center, neither of whom is a party to this appeal.*   *   *   *   *   *

2.   By so agreeing, Fisher has waived his objection to the trial court's refusal to issue a statement of decision.   Although the law clearly requires a statement of decision following an order denying a motion to compel arbitration if a question of fact was involved and if a timely request is made, no statement is required where the issue is one of law only.  (Painters Dist. Council No. 33 v. Moen (1982) 128 Cal.App.3d 1032, 1042, 181 Cal.Rptr. 17.)

WALLIN, Associate Justice.

SILLS, P.J., and CROSBY, J., concur.

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