*1 MANUEL v PIERCE 15, Docket 1982, No. 55892. Submitted March at Detroit. Decided 17, 1982. appeal applied November Leave to for. Plaintiff, Manuel, Phyllis individually, D. and as administratrix Manuel, III, deceased, estate William A. and as next Tiffany Manuel, Dayton Manuel, friend A. P. and Jennifer L. minors, Manuel, brought Wayne in an action Circuit Court against Hospital alleg- defendants Dr. James Pierce and Hutzel ing malpractice. medical moved an for accelerated judgment asserting that the court circuit lacked matter jurisdiction by malpractice reason of medical c'ourt, executed the decedent. The trial Victor J. Baum, J., opinion finding thereafter issued an malpractice violatеd impartial before a fair and tribunal. An denying hospital’s judg- order motion for an accelerated ment was then entered circuit court. The circuit court hospital’s denying also entered order motion recon- Hospital appeals, by granted, sideration. Hutzel leave from the denying judgment orders the motions for an accelerated reconsideration. Held: holding 1. The trial court erred in
arbitration act to be unconstitutional. 2. aWhen defendant action moves for ground accelerated on the has agreement, executed an arbitration the trial court shall con- hearing. hearing, duct a At the the defendant must affirma- tively signing agreement, show [2] [4] [6] [5] [10] Am Jur [8] [1, 3, [1, 8, Arbitration of medical 5 Am Jur 5 Am 61 Am 5 Am Jur 17 Am Jur 9] 6-9] 61 Am Jur Jur 5 Am Jur Jur 2d, 2d, 2d, 2d, 2d, Physicians, Surgeons, 2d, References Arbitration and Arbitration and Award 26.§ Arbitration and Contracts § 149. Contracts 2d, Physicians, Surgeons, 2d, Arbitration and Award for Points in Headnotes §§ 12, Award Award claims. 84 ALR3d 375. 5.§ 41.§ Other Healers § §§ Other 8, 9. Healers 376. § 374. v Pierce (1) being specifically informed: that the form he was asked to (2) form, by signing was an arbitration (3) giving up by jury judge, his to trial or a he would be that would decide his case would *2 attorney, layman, hospital and a doctor or a include an (4) administrator, hospital physicians and administrators that panels may have incentive to the on arbitration an minimize malpractice malprac- awards their number and size of because (5) awards, directly rates are affected those tice insurance (6) sign agreement, not have to that he did quality the would receive the same of medical treat- just quickly, ment and would be attended as whether or (7) sign agreement, hospitals the that doctors and he chose to permitted patients are not to refusе treatment who do not (8) agreement, signing agreement sign the entirely up patient. If the defendant fails to establish plaintiff evidence that was so informed clear and (and information), that he understood the the motion for accel- judgment erated shall be denied. Danhof, C.J., holding concurred with the that reversal is malpractiсe required he believes that the medical since arbitra- malpractice plaintiff’s process tion act does not violate a due impartial before a fair and tribunal. How- ever, agree with the it he does not conclusion that prove validity defendants’ burden to of the arbitration agreement admittedly signed. which the He case, prior Appeals would conclude that a Court of which held prove validity that the burden is on the defendant to of the agreement, wrongly reject plaintiff’s was decided. He would contention that the is an contract of unenforceable adhesion. J., proper disposi- Bronson, concurred оn the of the judgment
tion of a motion an for an accelerated based on malpractice to arbitrate a medical claim where the medical He arbitration act is held constitutional. prior opinion, Appeals also concurred that the which Court held that the burden is on the defendant to agreеment, adequate procedure sets forth for deter- mining knowing, intelligent, voluntary. if a waiver is He would also hold the an unenforceable contract is not However, of adhesion. that the act is consti- he does not provide facially tutional since for a fair he believes fails to tribunal. hearing.
Reversed and remanded for a Opinion of the Court Malpractice — — 1. Arbitration Medical Act Arbitration Consti- Impartial — tutional Law Tribunal. Michigan arbitration act does not vio- patient’s process right impartial late a due to a fair and (MCL and is not unconstitutional tribunal 600.5040 et seq.). MSA 27A.5040et Malpractice. — Medical Arbitration When a defendant in a action moves accelerated ground on the has executed an agreement, hearing; arbitration the trial court shall conduct a hearing, affirmatively at the the defendant must show that signing agreement, specifically (1) being informed: that the form he was asked to was an (2) form, by signing he would (3) giving up by jury judge, be his to trial or a that the that would decide his case would include an attorney, layman, hospital administrator, and a doctor or a (4) physicians administrators on arbitration panels may have an incentive to minimize the number and size *3 malpractice malpractice awards because their insurance (5) awards, directly rates are affectеd those that he did not (6) sign agreement, have to the quality would receive the same of medical treatment and would just quickly, sign be attended to as whether or not he chose to (7) agreement, hospitals permitted the that doctors and are not patients to refuse treatment who do not the (8) signing agreement entirely up patient; is if the defendant fails to establish clear and (and evidence that was so informed that he understood information), the motion for accelerated should be denied. by Danhof, Partial Concurrence C. J. and Partial Dissent Right — — 3. Constitutional Law Arbitration to Trial. litigant’s A agree forego civil decision to to arbitration and exacting of access to the courts is not to the same scrutiny as is the decision of a criminal defendant who waives a person’s since a decision to to arbitra- complete tion does not involve the abandonment of a constitu- right. tional v Pierce — 4. Arbitration Courts. long policy Michigan encourage It has beеn the of the courts of arbitration. — — Knowledge. — 5. Contracts Written Instruments Execution person agreement chargeable A who executes a written with knowledge of the contents of such instrument. Malpractice — Agreements 6. Arbitration Medical Arbitration Presumption Validity. — agreement malpractice presumed An to arbitratе a claim is valid provisions agreement comply where the disclosure of the requirements agreement provided for such in the medical (MCL malpractice 600.5041[7]; arbitration MSA 27A.5041[7]). Malpractice — Agreements Medical Arbitration Arbitration Validity — — Burden Proof. Legislature place The has evinced a clear intent upon party challenging validity malprac- of a medical agreement tice arbitration to demonstrate that the invalid; impediment precluding there is no constitutional Legislature placing proof party from such burden of on the seeking agreement, therefore, Appeals to avoid the a Court of malpractiсe case which held that the burden is on the defen- dant wrongly (MCL600.5041[7]; 27A.S041[7]). decided MSA Malpractice — Agreements 8. Arbitration Medical Arbitration — — Contracts Adhesion Contracts. A medical in conformance requirements with the of the medical (MCL act is not an unenforceable contract of adhesion 600.5040 seq.). et MSA 27A.5040 et by Bronson, J. and Partial Dissent Malpractice — — 9. Arbitration Medical Arbitration Act Due Process. Michigan arbitration act is unconstitu- provide tribunal; facially tional for failure to for a fair *4 portion relating composition of the statute of the arbitra- panels process by forcing litigant tion violates due of law to composed submit his or her сlaim to a tribunal which is in such way high probability a that a exists that said tribunal will be against mandating biased the claimant without of an use op Opinion the Court panel’s explicity detailing nature of the form makeup. Malpractice op — — Contracts Adhe- 10. Arbitration Medical sion. malpractice arbitration is not a contraсt The medical adhesion; of adhesion is one in which the con- a contract agreement presented accept the in order to avail sumer must goods and in which the or services desired himself terms; opportunity bargain really has no over consumer atmosphere although patient’s the coercive situation and hospital setting apparently inherent in the makes difficult sign refuse to required the same as a condition of admission or
treatment. Miller, Freedman, Milestone, Erlich & Lopatin, Silverman), Rosen Steven G. plaintiff. for (by Kitch, Suhrheinrich, Smith, Saurbier & Drut- chas, Stephen Donald A. Ducastel M. P.C. (by Kelley), for defendant. Danhof, C.J., and and J. R.
Before: Bronson Ernst,* JJ. Ernst, ap-
J. R. J. Defendant Hutzel Hospital peals, granted, leave from an order its denying In judgment. denying motion for an accelerated motion, the trial held that judge MCL 600.5040 et act, MSA 27A.5040 et seq., I am unconstitutional. and, not convinced that the act is unconstitutional therefore, conclude that decision trial court’s time, must be At for reversed. the same concern safeguarding seek rights of individuals who compels regard- treatment me to comment ing proper procedure a claim analyzing that a person bring has waived his action for medical forum. judicial
* judge, siting Appeals by assignment. Circuit on the Court of *5 369 Pierce Manuel v by Danhof, C.J. Partial Concurrence by reached this the result in accord with I am 179; Fragatos, v in Moore Court (1982), guidelines as adopt NW2d opinion. in IV of that part expressed is re- Therefore, of the trial court the decision so that matter is remanded and the versed at which defendant conducted hearing may be clear proving by the burden of Hospital has Hutzel plaintiffs evidence understood) (and the informa- provided with Moore, supra, pp 202-203. required by tion and remanded. Reversed dissenting (concurring part in Danhof, C.J. appeals, part). in Hospital by Hutzel Defendant motion denying an order its granted, leave from judgment. an accelerated for 1979, 29, commenced this August On acts of medi- complaint alleged Her various action. Dr. committed defendants сal Hospital during plain- Hutzel James Pierce and August from stay tiffs decedent’s 3, At admitted to October 1977. the time he was hospital, plaintiff’s decedent executed a medi- cal arbitration agreement. Hospital judg-
Hutzel moved for an accelerated ment, 1963, 116.1(2), asserting under GCR circuit court lacked matter jurisdiction reason of the Plaintiff chal- agreement. on lenged of the arbitration constitutional grounds. and other 22, 1980, issued an May
On the trial court arbi- opinion finding MCL 600.5040 et act, 27A.5040 tration MSA seq., et violated tribu- hearing impartial
have a
a fair and
motion
Hospital’s
nal. An order
Hutzel
denying
121 by Danhop,
C.J.
14,
was entered on
July
4,
On December
1980,
the trial court entered
ordеr denying a
granted
motion
reconsideration. We
Hutzel
application
Hospital’s
appeal.
for leave
There is a
on
split
this
as
authority
Court
whether
the medical malpractice
violates
before a fair and
impartial
requires
tribunal
that one of
*6
the three
a physi-
members be
cian
Brown v
or
Compаre
administrator.
Siang,
107
App 91;
Mich
(1981);
Plaintiff also contends that
by signing
arbi-
tration
her decedent did
knowingly,
not
intelligently
and voluntarily
right
waive his
to
trial before a court of
In
law.
support
her
contention,
plaintiff
Fragatоs,
on Moore v
relies
179;
(1982).
Mich App
It
is well-established
a person
where
exe-
cutes a written instrument
he is chargeable with
knowledge of the contents
of such instrument.
Co,
Cleaver v The
527;
Traders’
Ins
Mich
(1887).
NW
The rule was established for more
procedural
than mere
convenience.
It
is based
upon
experience
sound
and long-standing judicial
recognition that
in the absence of such a rule the
worth
written
instruments would be аlmost
nonexistant. The rule is intended to
greater
insure
stability
respect
to such
Sponsel-
instruments.
Kimball,
255,
ler v
260;
to insure that a person signing such an agreement has every opportunity to understand rights responsibilities created agreement. 600.5041; MCL MSA 27A.5041. particular Of note provision is the concerning the distribution of an information brochure. 600.5041(6); MCL MSA 27A.5041(6). Much of the information which the Moore Court require would to be disclosed to the is contained in the perceive brochure. I no cogent require reason to that a defendant make a further showing that provided has informa- tion to a plaintiff.
The act provides that where the disclosure provi-
sions of the arbitration
with the
comply
requirements
5041,
"shall be
§
presumed
valid”.
600.5041(7);
MCL
MSA
27A.5041(7). In
view,
my
provision
this
evinces a
legislative
clear
intent
place
the burden upon
the party challenging
agree-
ment
to demonstrate
in-
valid. The Moore
holding
Court’s
adopt
approach
Moore,
supra.
declined tо
Cooke,
taken
See Horn v
(1982).
740;
Judge
118 Mich
In the complied 5041 were of requirements § with, she contend nor does the result or as coercion induced arbitrate defendants. On made misrepresentations to show attempt no has made contrary, agree- signed the the time her that at consequences understand did not ment he circumstances, I would these Under his actions. find merit. claim is without that plaintiff’s Siang, in Brown v reasons stated for the
Finally, contention reject plaintiff’s also supra, I would contract of unеnforceable is an adhesion. dissenting (concurring part in J.
Bronson,
I
in
position
part).
I continue
to adhere
Metriyakool,
v
Morris
in
stated in dissent
gtd
lv
(1981),
110, 121;
309 NW2d
(1981).
on
Judge
I
held constitutional. believe Fragatos, v 179; 321 NW2d for deter- (1982), procedure adequate sets forth an intelligent, mining knowing, if a waiver voluntary.