Originally from Dispute Resolution Journal

MEDICAL MALPRACTICE -- TIMELINESS -- JURISDICTION—CAL. CODE CIV.  PROC 583- • CALIFORNIA

An action should not be dismissed based solely on a lapse of time between the filing of the complaint and the motion for dismissal where the matter has been ordered lo arbitration; rather, the question is whether reasonable diligence was exercised in moving the arbitration forward.  Preston and his family were covered by health insurance provided by Kaiser Foundation Hospitals as a benefit of employment. After receiving treatment from Kaiser, Preston's son died, and Preston commenced an action alleging medical malpractice. The contract between the union and Kaiser, however, provided tor arbitration of any malpractice claims and further provided that a claim would be waived and forever barred if ". . . the claimant fails to pursue the arbitration claim with reasonable diligence." After arbitration was ordered by the trial court, both defendant and plaintiff  selected an arbitrator, but the third, or neutral arbitrator was never selected. Therefore, the arbitration did not proceed. Kaiser moved to dismiss the action almost six years after the original complaint had been filed.