Gross

Defendants H. William Fister, M.D., Inc. and James A. Recabaren, M.D., Inc., the professional corporations of surgical oncologists H. William Fister and James A. Recabaren, appeal from an order denying their petition to stay further proceedings and compel arbitration of the medical malpractice action instituted by their patient Steven Gross and his wife Nancy Gross, who sought to recover damages for loss of consortium. They contend: “I. This court is not bound by the superior court’s error in construction of the arbitration agreement. II. This dispute over the fifth of Mr. Gross’ seven surgeries falls squarely within the scope of the arbitration agreement because the surgery was performed during the course of a continuous physician-patient relationship. III. The physicians have a right to arbitrate this case.”

The pertinent facts are undisputed. On August 16, 1984, Steven Gross accompanied his wife, who had been a patient of Dr. Fister for two and one half years, to Fister’s office for her checkup. During that visit, Gross himself arranged for the excision of a mole from the left side of his scalp and a cyst from the base of his scalp. These two procedures were performed…