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Bates v. Andaluz Waterbirth Center

Court of Appeals of Oregon

August 7, 2019

David Lee BATES, Personal Representative of the Estate of Olivia Sophia Bates, Deceased, Plaintiff-Respondent,
v.
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.

          Argued and Submitted December 14, 2017

          Multnomah County Circuit Court 16CV21155; Stephen K. Bushong, Judge.

          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.

          Rhett Garrett Fraser argued the cause for respondent. Also on the brief were James D. Huegli and Huegli Fraser P. C .

          Faith M. Morse fled the brief amicus curiae for Oregon Trial Lawyers Association.

          Before Ortega, Presiding Judge, and Powers, Judge, and Mooney, Judge. [*]

         [298 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 agreement.

         [298 Or.App. 735]ORTEGA, P. J.

         Defendants 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.

         The 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.

         On the 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:

         "The 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 smear."

         After the sections named above, the Midwife Disclosure sets out the following statement:

"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 ...

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