Baker

This is an appeal from an order denying a motion to compel arbitration. The motion was brought by Lawrence Birnbaum, a physician, named as a defendant in a complaint filed by B.H. Baker, for professional negligence, and by her husband, respondent, W.J. Baker, for loss of consortium. The motion was based on an agreement to arbitrate signed by Mrs. Baker which appellant contends also bound Mr. Baker, a nonsignatory. The motion was granted as to Mrs. Baker but denied as to Mr. Baker.

Few substantive facts appear in the record. It seems, however, that in November 1984, Mrs. Baker underwent surgery by appellant to replace breast implants which appellant had previously placed in her breasts. Prior to the 1984 surgery, Mrs. Baker signed an agreement to arbitrate "any dispute as to medical malpractice...." The agreement purported to bind Mrs. Baker and "anyone else who may have a right to assert a claim on [her] behalf ..." as well as other persons for whom she had responsibility, such as her spouse and any children.

Mrs. Baker was subsequently diagnosed as having cancer. In 1986, she filed the instant action against appellant. She alleged professional negligence…

*290 Opinion

This is an appeal from an order denying a motion to compel arbitration. The motion was brought by Lawrence Birnbaum, a physician, named as a defendant in a complaint filed by B. H. Baker, for professional negligence, and by her husband, respondent, W. J. Baker, for loss of consortium. The motion was based on an agreement to arbitrate signed by Mrs. Baker which appellant contends also bound Mr. Baker, a nonsignatory. The motion was granted as to Mrs. Baker but denied as to Mr. Baker.

Few substantive facts appear in the record. It seems, however, that in November 1984, Mrs. Baker underwent surgery by appellant to replace breast implants which appellant had previously placed in her breasts. Prior to the 1984 surgery, Mrs. Baker signed an agreement to arbitrate “any dispute as to medical malpractice . . . .” The agreement purported to bind Mrs. Baker and “anyone else who may have a right to assert a claim on [her] behalf. . .” as well as other persons for whom she had responsibility, such as her spouse and any children.

Mrs. Baker was subsequently diagnosed as having cancer. In 1986, she filed the instant action against appellant. She alleged professional negligence in…

I concur in the judgment of the court and in the reasoning set forth in the majority opinion except for its criticism of the opinion of Division Five of this court in Herbert v. Superior Court (1985) 169 Cal.App.3d 718 [ 215 Cal.Rptr. 477 ], Since the majority correctly finds Herbert “distinguishable on several points” (majority opn., ante, p. 293), I see no need to “expressly decline to follow Herbert.” (Majority opn., ante, p. 294.)

The majority, incorrectly in my opinion, concludes that the Herbert case “would apparently attempt ... to force respondent herein to arbitrate *295 . . . (Majority opn., ante, p. 294.) However, the holding in Herbert distinguishes the situation, like that presented in the case before us, where “[tjhere was no provision in the agreement whereby the signing party intended to bind his or her heirs to the arbitration clause.” (Herbert v. Superior Court, supra, 169 Cal.App.3d at p. 725, fn. 2 .) Furthermore, by expressing its disapproval of Herbert , the majority in cursory fashion expresses an opinion on an issue not before us, namely, construction of an arbitration provision in the context of the well-established rule that “[t]he statutory cause of…