Under Code of Civil Procedure section 1295, a patient may enter into an arbitration agreement binding on his heirs (and thus wrongful death plaintiffs) of “any dispute as to the professional negligence of a health care provider.”  This decision holds that a wrongful death complaint based on violation of the Elder Abuse Act through “neglect” is not a claim for negligent provision of professional health care services but rather a complaint for failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.  Thus, section 1295 does not apply to such a complaint, even if the plaintiff might have chosen to plead the same acts as medical negligence.  Accordingly, the heirs were not bound by the arbitration agreement signed for the elderly patient on admission.  Nor was the son who signed that agreement for the elderly patient bound by it since he signed only in a representative capacity, not for himself.

California Court of Appeal, Fourth District, Division Three (Moore, J.); February 26, 2018; 2018 WL 1044668.