CUSHMAN v FRANKEL
Docket No. 47422
111 Mich App 604
December 1, 1981
Submitted February 5, 1981, at Detroit. Leave to appeal applied for.
- The plaintiff was not denied due process by the act‘s requirement that a doctor or hospital administrator sit on the arbitration panel.
- The arbitration agreement is not a contract of adhesion.
- Plaintiff‘s argument that the signing of the arbitration agreement constituted an unknowing waiver of constitutional rights is without merit. Thе plaintiff‘s decedent knowingly waived only the right to trial of any dispute before a court and no other constitutional right.
Affirmed.
REFERENCES FOR POINTS IN HEADNOTES
[1] 17 Am Jur 2d, Contracts §§ 1, 5.
[2-4, 6] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§ 374, 376.
Arbitration of medical malpractice claims. 84 ALR3d 375.
[5] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 147.
Professional incompetency as ground for disciplinary measure against physician or dentist. 28 ALR3d 487.
OPINION OF THE COURT
1. CONTRACTS — ADHESION CONTRACTS.
The essence of an adhesion contract is that it is offered on a take it оr leave it basis to a consumer who has no realistic bargaining strength and who cannot obtain the desired services or goods without consenting to the contract terms.
2. ARBITRATION — PHYSICIANS AND SURGEONS.
Medical malpractice arbitration agreements may be revoked by the patient within 60 days of execution or with rеgard to hospitals within 60 days of discharge from the hospital (
3. ARBITRATION — PHYSICIANS AND SURGEONS — MEDICAL MALPRACTICE ARBITRATION ACT — STATUTES.
The Michigan Medical Malpractice Arbitration Act is not an unconstitutional denial of a malpractice plaintiff‘s right to due process of law merely because the act requires that a doctor or hospital administrator sit on the arbitration panel (
DISSENT BY BRONSON, P.J.
4. PHYSICIANS AND SURGEONS — MEDICAL MALPRACTICE ARBITRATION ACT — DUE PROCESS.
The Medical Malpractice Arbitration Act is unconstitutional for failure to provide for a facially fair tribunal; the portion of the statute relating to the composition of the arbitration panels violates due process of law by forcing the litigant to submit his claim to a tribunal which is composed in such a way that a high probability exists that said tribunal will be biased against the claimant without mandating the use of an arbitration form explicitly detailing the nature of the panel‘s makeup.
5. PHYSICIANS AND SURGEONS — DISCIPLINARY ACTIONS — MALPRACTICE.
Disciplinary actions for members of a profession and actions for
6. ARBITRATION — PHYSICIANS AND SURGEONS.
Thе appropriate test to determine whether an arbitration panel deprives a party of due process is whether the tribunal is composed in such a way that too great a risk exists that one or more of the judges may have a personal interest in the outcome of thе proceeding and consequently may be biased.
Lopatin, Miller, Bindes, Freedman, Bluestone, Erlich & Rosen (by Steven G. Silverman), for plaintiff.
Schureman, Frakes, Glass & Wulfmeier (by Edward C. Reynolds, Jr.), for defendants Frankel and Mandeberg.
Kitch, Suhrheinrich, Smith, Saurbier & Drutchas, P.C. (by Donald A. Ducastel), for Providence Hospital.
Before: BRONSON, P.J., and M. F. CAVANAGH and N. J. KAUFMAN, JJ.
PER CURIAM. This case involves a constitutional challenge to the Medical Malpractice Arbitration Act,
On July 9, 1976, plaintiff‘s decedent, Joan Cushman, was admitted to defendant Providence Hospital. Mrs. Cushman signed an arbitration agreement form that day prior to receiving treatment from defendant Drs. Frankel and Mandeberg. The agreement was not revoked in writing within the 60-day period provided by the terms of the arbitration agreement and by the act.
Mrs. Cushman died after her discharge from the hospital. On July 5, 1978, plaintiff filed suit as the administrator of Mrs. Cushman‘s estate in Wayne County Circuit Court, alleging medical negligence against defendants. Defendants brought a motion for accelerated judgment, contending that the court lacked jurisdiction to hear the case because of plaintiff‘s failure to revoke the arbitration agreement. The trial court granted defendants’ motions and plaintiff now appeals as of right.
On appeal plaintiff raises three objections to the arbitration scheme. First, рlaintiff argues that the act violates his right to a hearing before a fair and impartial tribunal since any arbitration panel will include a physician or hospital administrator. Next, plaintiff contends that the arbitration agreement constituted an unenforceable contract of adhеsion. Finally, plaintiff contends that the circumstances under which arbitration agreements are signed are not conducive to a knowing waiver of the right to court access.
Initially, we reject plaintiff‘s claim that the arbitration agreement is a contract of adhesion. The essence of an adhesion contract is that it is offered on a take it or leave it basis to a consumer who has no realistic bargaining strength and who cannot obtain the desired services or goods without consenting to the contract terms. Wheeler v St Joseph Hospital, 63 Cal App 3d 345, 356; 133 Cal Rptr 775 (1976). Here, plaintiff‘s decedent was able to receive health care without foregoing the choice between arbitration or court trial. The arbitration act specifically requires these agreements to state that execution is not a prerequisite to treatment.
Likewise, we find without merit plaintiff‘s argument that the signing of the agreement constituted an unknowing waiver of constitutional rights. When plaintiff‘s decedent entered into the arbitration agreement, the only constitutional right waived was that to trial of any dispute before a court.1 The agreement provided in pertinent part:
“I understand that Michigan Law gives me the choice of trial by judge or jury or of arbitration. I understand that arbitration is a procedure by which a panel that is either mutually agreed upon or appointed decides the dispute rather than a judge or jury. I freely choose arbitration, and I agree that a judgment of any circuit court may be rendered upon any award or determination made pursuant to this agreement.
* * *
“I certify that I have read this agreement or have had it read to me and that I fully understand its content and execute this agrеement of my own free will. I have received a complete copy of the booklet which explains this agreement.”
Since we can only presume that plaintiff‘s decedent read the terms of the agreement before signing it, we conclude that she knowingly waived the right to court аccess as delineated above.
We find more troubling plaintiff‘s contention that the required composition of the arbitration panel violates due process. This issue has already produced a split of opinion among members of this Court. Compare Brown v Siang, 107 Mich App 91;
In Crampton v Dep‘t of State, 395 Mich 347; 235 NW2d 352 (1975), the Supreme Court held that the plaintiff, who had been arrested for drunk driving, was dеnied the due process right to a hearing before a fair and impartial tribunal when his driver‘s license was suspended by a two-member panel consisting of a representative of the Secretary of State and a police officer. The Court concluded that the risk that police officers “will be unable to step out of their roles as full-time law enforcement officials and into the role of unbiased decisionmaker in a law enforcement dispute between a citizen and a police officer presents a probability of unfairness too high to be constitutionally tolerable“. Id., 357-358.
Likewise, in Glass v State Highway Comm‘r, 370 Mich 482; 122 NW2d 651 (1963), the Supreme Court held that a deputy highway commissioner could not fairly conduct a hearing and decide on the necessity for condemnation of a parcel for highway purposes. The Court noted that the deputy commissioner was an interested persоn inasmuch as his own job security could depend on whether he carried into effect the highway planning decisions of his superior.
We believe that the danger of biased decision-
We believe that these procedures provide sufficient protection against panel bias. To conclude otherwise would imply an inherent prejudice within the medical profession so deeply held as to precludе members from ever standing in judgment of their colleagues. This we cannot accept. The very licensing of members of the medical profession is governed by the Medical Practice Board, 10 of the 11 members of which must be doctors.
Affirmed.
BRONSON, P.J. (dissenting). I dissent for the reasons stated in my partial concurrence in Morris v Metriyakool, 107 Mich App 110; 309 NW2d 910 (1981), Judge T. M. BURNS’ dissenting opinion in Williams v O‘Connor, 108 Mich App 613; 310 NW2d 825 (1981), and the majority opinions in Jackson v Detroit Memorial Hospital, 110 Mich App 202; 312 NW2d 212 (1981), and Piskorski v Art Centre Hospital, 110 Mich App 22; 312 NW2d 160 (1981).
I make the following remarks concerning the majority‘s analogy to self-regulation in the professions as a justification for upholding the arbitration system here. I believe this analogy is faulty. Internal professional regulatory bodies do not make decisions which adversely affect an aggrieved individual‘s ability to pursue civil reme-
I also note that the majority is apparently applying an incorrect legal standard in determining whether the arbitration panels pose due process problems. The question is not whether it is impossible to find unbiased arbitrators within the pool of potential arbitrators, but whether a tribunal is composed in such a way that too great a risk exists that one or more of the judges may have a personal interest in the outcome of the proceedings and, consequently, be biasеd. Ward v Village of Monroeville, 409 US 57, 59-61; 93 S Ct 80; 34 L Ed 2d 267 (1972), Crampton v Dep‘t of State, 395 Mich 347, 355-356; 235 NW2d 352 (1975).
It is of course true that today plaintiffs’ attorneys can find medical practitioners willing to testify against members of their profession. However, to the extent that the majority opinion implies any sort of parity in the ability of the plaintiffs’ bar to obtain medical experts, I vehemently disagreе. As a judge on this Court for some 13 years, it has been my observation from reviewing the records in many medical malpractice cases that the plaintiffs’ bar, with occasional exceptions, must rely on a small group of medical doctors who are used over and over again, while the defense bar faces no such restrictions. Consequently, the plaintiffs’ experts are more susceptible to attacks on their neutrality than defense experts. The defense bar knows which doctors are willing to testify for plaintiffs, and I have no doubt that their faces will not be seen on arbitrаtion panels.
I would reverse.