Rosenfield

This proceeding in mandate presents the question whether the requirements of Code of Civil Procedure section 1295, subdivisions (a) and (b), concerning waiver of the patient’s right to jury trial, are mandatory or advisory.

For the reasons discussed below, we conclude that the failure of a health care contract to contain the advisements specified in subdivisions (a) and (b) of section 1295 automatically renders unenforceable the arbitration provisions of such contract; section 1295 is mandatory and preempts the general provisions of section 1281.2 in the area of medical malpractice arbitration agreements.

The facts are simple and not in dispute. While under the care of defendant physician, plaintiff executed on three separate occasions (Oct. 3, 1978, Nov. 11, 1978, and Jan. 19, 1981) a printed form provided by defendant entitled “Treatment and Arbitration Agreement.” The agreements, all identical in printed form and content, provide with regard to arbitration: “In the event of any controversy between the Patient, . . . and the Attending Physician, . . . involving a claim in tort or contractual, the same shall be submitted to arbitration. ” Following this is a brief…