David Lee BATES, Personal Representative of the Estate of Olivia Sophia Bates, Deceased, Plaintiff-Respondent,
ANDALUZ WATERBIRTH CENTER, an Oregon corporation; Carmen Cosby, CPM, LDM; Jennifer Gallardo, CPM, LDM; Tracy Lawson-Allen, CPM, LDM; Katie Nadalsky, CNM; Mary Strubhar, CNM, MSN;andMarilyn Milestone, CPM, LDM, IBCLC, Defendants-Appellants.
and Submitted December 14, 2017
Multnomah County Circuit Court 16CV21155; Stephen K. Bushong,
Hermine Serena Hayes-Klein argued the cause for appellants.
On the brief were Janet M. Schroer and Hart Wagner LLP. On
the reply brief was also Mark Sherman.
Garrett Fraser argued the cause for respondent. Also on the
brief were James D. Huegli and Huegli Fraser P. C .
M. Morse fled the brief amicus curiae for Oregon Trial
Ortega, Presiding Judge, and Powers, Judge, and Mooney,
Or.App. 734] Case Summary: Defendants appeal from an order
denying their motion to compel arbitration of plaintiff's
claim for wrongful death. Plaintiff is the personal
representative for the estate of Olivia Bates, who was two
days old when she died from complications of her birth at
defendant Andaluz Waterbirth Center. Defendants sought to
compel arbitration based on an arbitration clause in the
"Midwife Disclosure and Consent" that Olivia's
mother had signed when she was about four months pregnant
with Olivia. The trial court denied that motion, and
defendants appeal. Held: The trial court did not
err. Olivia's mother did not sign the Midwife Disclosure
and Consent on behalf of Olivia, and Olivia was not a party
to that agreement. In addition, Olivia was not bound as a
third-party beneficiary to the agreement because neither
Olivia's mother, on Olivia's behalf, nor the personal
representative of Olivia's estate, assented to the
Or.App. 735]ORTEGA, P. J.
appeal from an order denying their motion to dismiss and
compel arbitration of plaintiffs claim for wrongful death.
ORS 36.730(1)(a). Plaintiff is the personal representative
for the estate of Olivia Bates, who was two days old when she
died from complications of her birth at defendant Andaluz
Waterbirth Center (Andaluz). Defendants sought to dismiss the
wrongful death action and compel arbitration based on an
arbitration clause in the "Midwife Disclosure and
Consent" form that Olivia's mother, Stephanie Bates,
had signed when she was about four months pregnant with
Olivia. The trial court denied that motion, and defendants
appeal. Under the circumstances presented here, we conclude
that Olivia was not bound by the arbitration agreement in the
Midwife Disclosure and Consent form and, accordingly, affirm.
relevant facts are undisputed. In July 2014, Stephanie Bates
sought prenatal and birth care at Andaluz. Before receiving
care, she signed a "Midwife Disclosure and Consent"
(Midwife Disclosure). The Midwife Disclosure is a two-and
one-half page form and is signed only by Stephanie.
first page and the beginning of the second page, the Midwife
Disclosure describes the experience of the midwives who work
at Andaluz. It then provides information and disclosures
about the services offered, and not offered, at Andaluz,
separated by the following headings: "Services provided
to mother and baby," "Responsibilities of the
mother and her family," "The risks inherent in
birth and malpractice coverage disclosure," "Types
of emergency medicine and equipment used,"
"Transfer of Care and Transport Plan," "Fees
for services including financial arrangements," and
"Our philosophy of birth." Of relevance to this
proceeding, the "Services provided to mother and
baby" section provides:
Andaluz midwives provide continuity of care. Two midwives
will serve you during your pregnancy and birth, in our birth
center or your home. Besides your two mid-wives, Andaluz also
uses the assistance of midwife apprentices whom you will meet
at your prenatal visits. The apprentices are trained in
labor, birth, and postpartum [298 Or.App.736] care and are
well on their way to becoming midwives themselves. We provide
childbirth classes, lab work throughout the pregnancy (lab
fees are separate), one hour prenatal visits every four weeks
until 32 weeks, every two weeks until 36 weeks, then every
week until birth, 24-hour on-call services for labor and
other emergency needs, labor and delivery care in one of our
birthing suites or in your home, meals for you and your
partner during your stay at the birth center, newborn exam
after delivery, 1-2 day postpartum care at the birth center,
four postpartum visits for baby and mother at 3 days, 1 week,
3 weeks, and 6 weeks, contraceptive counseling and pap
the sections named above, the Midwife Disclosure sets out the
"I plan to give birth at the Andaluz Waterbirth Center
or at home with a midwife in attendance. I have read,
discussed, and signed our midwives disclosure statement and
agree to read the financial agreement and risk assessment
criteria as listed in the Birthing ...