MCKINSTRY v VALLEY OBSTETRICS-GYNECOLOGY CLINIC, PC; GUERTIN v MARRELLA
Docket Nos. 77531, 78140
Supreme Court of Michigan
Decided May 8, 1987
Argued January 14, 1987 (Calendar Nos. 7-8)
428 MICH 167
GUERTIN v MARRELLA
Docket Nos. 77531, 78140. Argued January 14, 1987 (Calendar Nos. 7-8). Decided May 8, 1987.
Thomas McKinstry and Kathleen L. McKinstry, for herself and as next friend of Amanda McKinstry, a minor, brought an action in the Saginaw Circuit Court against Valley Obstetrics-Gynecology Clinic, P.C., and Saginaw General Hospital, seeking damages for injuries arising out of the alleged negligent delivery of Amanda. The court, Hazen R. Armstrong, J., granted accelerated judgment for the defendants and ordered arbitration as provided under an arbitration agreement, signed by Kathleen McKinstry, pursuant to the Malpractice Arbitration Act. The Court of Appeals, R. B. BURNS and WAHLS, JJ. (DANHOF, C.J., dissenting), reversed, holding that the act was unconstitutional (Docket No. 56124). The Supreme Court vacated the judgment of the Court of Appeals in light of Morris v Metriyakool, 418 Mich 423 (1984), and remanded the case to the Court of Appeals. 419 Mich 873 (1984). The Court of Appeals, in turn, remanded the case to the trial court for an evidentiary hearing to determine whether the hospital had complied with the statutory mandates of the act when offering the arbitration agreements to Kathleen McKinstry. On remand, the court, Robert L. Kaczmarek, J., found that the defendants had complied with the act and that the agreements were valid on their faces and granted accelerated judgment for the defendants. After remand, the Court of Appeals, DANHOF, C.J., and R. B. BURNS and WAHLS, JJ., affirmed in an opinion per curiam (Docket No. 78811). The plaintiffs appeal.
Robert L. Guertin brought an action in the Macomb Circuit Court against Basil Marrella, D.P.M., Thomas Bauder, D.P.M., and Hutzel Hospital—Warren Division, alleging medical malprac-
In an opinion by Justice GRIFFIN, joined by Chief Justice RILEY and Justices LEVIN, BRICKLEY, and BOYLE, the Supreme Court held:
The burden of establishing the existence of an arbitration agreement that conforms to the strict requirements of the Malpractice Arbitration Act rests with the party seeking to enforce the agreement. Once prima facie evidence of such an agreement has been presented, the statutory presumption of validity accrues, and the burden of going forward with evidence to rebut the presumption shifts to the party seeking to avoid the agreement. The parent of an unborn child, by entering such an agreement, can bind the child, after birth, to arbitrate disputes which arise out of the prenatal care and delivery of the child.
- The Malpractice Arbitration Act provides that a health care provider may, and a hospital must, offer to arbitrate disputes arising from the provision of health care. In order for an arbitration agreement to be enforceable under the act: the offer to arbitrate must be in writing; must, for sixty days, be revocable by the patient in writing; and must state above the signature line in twelve-point boldface type that the agreement is not a prerequisite to health care treatment and may be revoked within sixty days. The patient must be given a copy of the arbitration agreement and a booklet detailing the specific provisions of the agreement, and, in addition, the offer to arbitrate must not precede the provision of emergency medical care. An agreement to arbitrate which conforms strictly to these requirements is presumed valid.
- A hospital or health care provider that has pleaded the existence of a valid arbitration agreement bears the initial burden of going forward with evidence establishing that the arbitration agreement was executed in strict compliance with the Malpractice Arbitration Act. The statutory presumption of validity accrues once the defendant offers evidence that a written arbitration agreement complying with the provisions of the act has been signed by the person who received health care
or treatment or a legal representative and that the agreement otherwise was executed in strict compliance with the statute. If the trial court determines that the agreement complies with the act and that other independent evidence demonstrates that the patient has been given a copy of both the agreement and booklet in a nonemergency setting, the agreement is presumed valid. Once a showing is made that gives rise to the presumption, it will stand unless rebutted by evidence that either demonstrates noncompliance with the statutory provisions or establishes one or more defenses, such as coercion, mistake, duress, or fraud. - Evidence of habit or routine of a hospital or health care provider is relevant to establish that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
- The health care provider does not have the burden of proving by clear and convincing evidence that the patient knowingly, intelligently, and voluntarily waived the right to trial. A person‘s decision to arbitrate a medical malpractice dispute and the consequential waiver of a jury trial is not tantamount to a deprivation of a fundamental constitutional right. The right to a jury trial in a civil action is permissive, not absolute. The presumption of validity of an arbitration agreement is not only an evidentiary rule of procedural convenience, but also is one grounded in reality.
- The Malpractice Arbitration Act changed the common-law rule that a parent has no authority to waive, release, or compromise claims by or against a child. The statute was intended to allow parents to bind children to arbitration, rather than to permit subsequent avoidance of arbitration at the age of majority. A minor child born after parental consent to arbitration cannot be distinguished from a minor child born prior to parental consent. Neither a fetus in utero nor a minor child has the capacity to contract for medical care and can only do so through a parent or guardian.
- In Guertin, the plaintiff failed to prove noncompliance with the act. The trial court did not clearly err in evaluating the evidence before it and in placing the burden of going forward with evidence to invalidate a conforming arbitration agreement upon the plaintiff.
- In McKinstry, the validity of the arbitration agreements was established. The defendants made a prima facie showing of compliance with the act, and the plaintiffs failed to go forward with sufficient evidence to rebut the presumption of validity. Kathleen McKinstry was in sufficient physical and mental
condition to sign the agreements and did so in a nonemergency setting. In addition, Amanda McKinstry was bound by the agreement signed by her mother.
McKinstry, affirmed.
Guertin, reversed.
Justice ARCHER, dissenting in Guertin only, stated that the burden of establishing the existence of an arbitration agreement that conforms to the strict requirements of the Malpractice Arbitration Act should be placed on the health care provider to prove by clear and convincing evidence that the patient knowingly, intelligently, and voluntarily waived rights to court access and to revoke the agreement within sixty days.
Access to the courts is a fundamental right. In civil cases, courts must indulge every reasonable presumption against waiver of a fundamental right; there can be no presumption of acquiescence to the loss of a fundamental right. The Malpractice Arbitration Act provides that an agreement to arbitrate is to be presumed valid, but does not provide a presumption that the waiver contained is knowing and voluntary. The presumption of validity is rebuttable in that once a patient contends that an alleged waiver of constitutional rights was unknowing, involuntary, or unintelligent the presumption disappears and the burden remains with the health care provider to show the contrary. For a health care provider to rely on rote testimony of habit and custom as evidence of a waiver does not sustain the burden of producing clear, positive, and credible evidence that the statutory safeguards to ensure the fairness of the arbitration process have been strictly followed. The burden of proving a knowing and voluntary waiver should be placed on the party which can best meet it—the health care provider.
Justice CAVANAGH dissented on the basis of his view of the statute as expressed in Morris v Metriyakool, 418 Mich 423 (1984).
146 Mich App 307; 380 NW2d 93 (1985) affirmed.
149 Mich App 420; 385 NW2d 805 (1986) reversed.
1. ARBITRATION — MALPRACTICE ARBITRATION ACT — BURDEN OF PROOF — PRESUMPTION OF VALIDITY.
The burden of establishing the existence of an arbitration agreement that conforms to the strict requirements of the Malpractice Arbitration Act rests with the party seeking to enforce the agreement; once prima facie evidence of such an agreement has been presented, the statutory presumption of validity accrues, and the burden of going forward with evidence to rebut the presumption then shifts to the party seeking to avoid the agreement (
An arbitration agreement is enforceable and presumed valid where: the agreement complies with the provisions of the malpractice arbitration act, is in writing, has been signed by the person who received health care or treatment or a legal representative, is revocable in writing for sixty days, states above the signature line in twelve-point boldface type that the agreement to arbitrate is not a prerequisite to health care treatment and may be revoked within sixty days; the patient is given a copy of the arbitration agreement and a booklet detailing the specific provisions of the agreement; and the offer to arbitrate does not precede the provision of emergency medical care (
3. ARBITRATION — MALPRACTICE ARBITRATION ACT — HABIT AND ROUTINE.
In an action challenging the validity of a malpractice arbitration agreement, evidence of habit or routine of a hospital or health care provider is relevant to establish that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice (
4. ARBITRATION — CONSTITUTIONAL LAW — MALPRACTICE ARBITRATION ACT.
A decision to arbitrate a medical malpractice dispute and the consequential waiver of a jury trial is not tantamount to a deprivation of a fundamental constitutional right; the right to a jury trial in a civil action is permissive, not absolute (
5. ARBITRATION — MALPRACTICE ARBITRATION ACT — UNBORN CHILDREN.
The parent of an unborn child can bind the child, after birth, to arbitrate disputes which arise out of the prenatal care and delivery of the child (
Charfoos & Christensen, P.C. (by Sharon S. Lutz and David R. Parker), for plaintiffs McKinstry.
Colista, Urso, Adams & Dettmer, P.C. (by Constance J. Allen), for plaintiff Guertin.
Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. (by Stephen M. Kelley and Susan Healy Zitterman), for defendant Saginaw General Hospital.
Vandeveer, Garzia, Tonkin, Kerr, Heaphy, Moore, Sills & Poling, P.C. (by Robert D. Brignall), for defendant Marrella.
Franklin, Bigler, Berry & Johnston, P.C. (by Lisa C. DeGryse), for defendants Bauder and Hutzel Hospital.
Amici Curiae:
Kerr, Russell & Weber (by Louis G. Corey and Richard D. Weber) for Michigan State Medical Society.
Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick (by Richard E. Shaw) for Michigan Trial Lawyers Association.
OPINION OF THE COURT
GRIFFIN, J. The two cases before us are representative of a conflict that exists in this state among courts as well as litigants. The principal issue is usually posed in terms of who must bear the “burden of proof” in establishing the validity (or invalidity) of an arbitration agreement signed pursuant to the Medical Malpractice Arbitration Act,
Because the Legislature in fashioning the MMAA took pains to declare that an arbitration agreement which conforms to the statute‘s requirements
What is the evidentiary effect of this statutory presumption upon the respective burdens of the parties in a suit for malpractice where jurisdiction is challenged on the ground that claims involved must be submitted to arbitration in accordance with the MMAA?
We hold that the burden of establishing the existence of an arbitration agreement that conforms to the strict requirements of the statute rests with the party seeking to enforce the agreement. Once prima facie evidence of such an agreement has been presented, the statutory presumption of validity accrues, and the burden of going forward with evidence to rebut the presumption then shifts to the party seeking to avoid the agreement.
We are also asked to decide in McKinstry whether the parent of an unborn child can bind the child, after birth, to arbitrate disputes which arise out of the prenatal care and delivery of the child. We answer the question in the affirmative.
We begin our analysis with a review of the facts and procedural background of the two cases involved in this appeal.
I
MCKINSTRY v VALLEY OBSTETRICS-GYNECOLOGY CLINIC, PC
On October 17, 1978, plaintiff Kathleen (Mrs. Thomas) McKinstry was admitted to Saginaw General Hospital by employees of Valley Obstetrics-
On February 27, 1980, plaintiffs Kathleen McKinstry, Thomas McKinstry, and Kathleen McKinstry as next friend of Amanda McKinstry, a minor, filed a complaint in Saginaw Circuit Court against Valley Obstetrics-Gynecology Clinic, P.C., and Saginaw General Hospital, seeking damages arising out of the alleged negligent delivery of Amanda McKinstry. Motions by the defendants for accelerated judgment on the basis of the two arbitration agreements were granted by the trial court.
The Court of Appeals reversed the decision of the trial court and remanded the case for trial, holding that the MMAA was unconstitutional because the statutory agreement form failed to advise patients adequately as to how the arbitration panel would be selected. See McKinstry v Valley Obstetrics-Gynecology Clinic, PC, 120 Mich App 479; 327 NW2d 507 (1982), vacated and remanded 419 Mich 873 (1984).
The Court vacated that judgment in light of Morris v Metriyakool, 418 Mich 423; 344 NW2d 736 (1984), and remanded the case to the Court of Appeals for consideration of other issues raised by plaintiffs.
The Court of Appeals then remanded the case to the trial court to conduct an evidentiary hearing to determine whether defendant hospital had complied with the statutory mandates of the MMAA when offering the arbitration agreements to Mrs. McKinstry.
Such a hearing was held, and the trial court found that the signed arbitration agreements were valid on their faces and that plaintiffs had failed in their burden to avoid the agreements.
This case was then returned to the Court of Appeals, and that Court upheld the trial court‘s grant of accelerated judgment for defendants. McKinstry v Valley Obstetrics-Gynecology Clinic, PC (After Remand), 146 Mich App 307; 380 NW2d 93 (1985). Upon application, leave was granted to appeal to this Court.
II
GUERTIN v MARRELLA
The plaintiff Robert Guertin underwent corrective foot surgery in December, 1979, at Hutzel Hospital—Warren Division. In April, 1983, plaintiff filed the instant suit against defendants Basil Marrella, D.P.M., Thomas Bauder, D.P.M., and Hutzel Hospital—Warren Division because of his dissatisfaction with the surgical results. The defendants moved for accelerated judgment or, in the alternative, for an order compelling arbitration on the basis of a December 12, 1979, arbitration agreement signed by the plaintiff.
An evidentiary hearing was held to determine the validity of the arbitration agreement. At the
The Court of Appeals reversed, holding that the trial court had improperly placed upon plaintiff the burden of proving the invalidity of the arbitration agreement. Guertin v Marrella, 149 Mich App 420; 385 NW2d 805 (1986). The case was remanded for further proceedings because the Court of Appeals could not say “that, had the burden been properly placed with the defendant, the ruling of the trial court would have been the same.” Id., p 424.
Defendants then applied for, and this Court granted, leave to appeal.
III
Sections 5041 and 5042 of the MMAA provide that a “health care provider” may, and a “hospital” must, offer to arbitrate disputes arising from the provision of health care. In order to be enforceable under the MMAA, the offer must be made in compliance with the following statutory conditions:2
- The offer to arbitrate must be in writing;
- The offer, if accepted by the patient, must, for sixty days, be revocable in writing;
- The agreement must state, above the signature line in twelve-point boldface type: “THIS AGREEMENT TO
ARBITRATE IS NOT A PREREQUISITE TO HEALTH CARE OR TREATMENT AND MAY BE REVOKED WITHIN 60 DAYS AFTER EXECUTION BY NOTIFICATION IN WRITING” TO ___________;
- The patient must be given a booklet detailing the specific provisions of the arbitration agreement;
- The patient must be given a copy of the arbitration agreement; and
- The offer to arbitrate must not precede the provision of emergency medical care.
MCL 600.5041 ,600.5042 ;MSA 27A.5041 ,27A.5042 .
As already noted, the Legislature took care to provide that an agreement to arbitrate which conforms to the statute‘s requirements “shall be presumed valid.”
Plaintiffs in the cases before us argue that enforcement of such an arbitration agreement would deprive them of constitutional rights to a jury trial and court access, and thus maintain that the burden should rest upon the defendants to show a valid contract. Plaintiffs cite Moore v Fragatos, 116 Mich App 179; 321 NW2d 781 (1982), in which a panel of the Court of Appeals viewed the arbitration agreement as a waiver of a constitutional right and reasoned that existence of such a waiver is never presumed, but requires an affirmative showing that the waiver was made knowingly, intelligently, and voluntarily. The Moore Court placed the burden on the defendant to demonstrate by such an affirmative showing that the plaintiff had waived his rights.4
In response, defendants contend that arbitration is a matter of contract and that one who signs a written agreement is presumed to understand it. Under the act, an agreement which conforms to statutory requirements is presumed to be valid,
Prior analysis has accorded little weight to the evidentiary aspects of this issue. The essence of the matter at hand, however, involves an assessment of the evidentiary effect of this statutory presumption upon the respective burdens otherwise borne by the parties. We thus momentarily bypass constitutional and policy concerns which have preoccupied courts before us and revisit basic evidence principles regarding presumptions and the burden of proof.
The term “burden of proof” encompasses two separate meanings. 9 Wigmore, Evidence (Chad-
The burden of producing evidence on an issue means the liability to an adverse ruling (generally a finding or directed verdict) if evidence on the issue has not been produced. It is usually cast first upon the party who has pleaded the existence of the fact, but as we shall see, the burden may shift to the adversary when the pleader has discharged his initial duty. The burden of producing evidence is a critical mechanism in a jury trial, as it empowers the judge to decide the case without jury consideration when a party fails to sustain the burden.
The burden of persuasion becomes a crucial factor only if the parties have sustained their burdens of producing evidence and only when all of the evidence has been introduced. It does not shift from party to party during the course of the trial simply because it need not be allocated until it is time for a decision. When the time for a decision comes, the jury, if there is one, must be instructed how to decide the issue if their minds are left in doubt. The jury must be told that if the party having the burden of persuasion has failed to satisfy that burden, the issue is to be decided against him. If there is no jury and the judge finds himself in doubt, he too must decide the issue against the party having the burden of persuasion. [McCormick, supra, § 336, p 947.]
The immediate effect of a presumption is to shift the burden of going forward with the evidence related to the presumed fact. Rule 301 of the Michigan Rules of Evidence provides:
In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
Thus, the function of a presumption is to place the burden of producing evidence on the opposing party:
It is a procedural device which allows a person relying on the presumption to avoid a directed verdict, and it permits that person a directed verdict if the opposing party fails to introduce evidence rebutting the presumption.
Almost all presumptions are made up of permissible inferences. Thus, while the presumption may be overcome by evidence introduced, the inference itself remains and may provide evidence sufficient to persuade the trier of fact even though the rebutting evidence is introduced. But always it is the inference and not the presumption that must be weighed against the rebutting evidence. [Widmayer v Leonard, 422 Mich 280, 289; 373 NW2d 538 (1985).]
In the context of the present circumstances, the defendant hospital or health care provider, as the party who has pleaded the existence of the operative facts (validity of the arbitration agreement), bears the initial burden of going forward with evidence establishing that the arbitration agreement was executed in strict compliance with the MMAA. We hold that the statutory presumption of validity accrues once the defendant offers evidence that
A written arbitration agreement complying with the provisions of the MMAA has been signed by the person receiving health care or treatment or his legal representative; - The arbitration agreement provides that the offer to arbitrate, if accepted by the patient, must be revocable in writing for sixty days;
- The arbitration agreement states, above the signature line in twelve-point boldface type: “THIS AGREEMENT TO ARBITRATE IS NOT A PREREQUISITE TO HEALTH CARE OR TREATMENT AND MAY BE REVOKED WITHIN 60 DAYS AFTER EXECUTION BY NOTIFICATION IN WRITING TO ___________“;
- The patient has been given a booklet detailing the specific provisions of the arbitration agreement;
- The patient has been given a copy of the arbitration agreement; and
- The offer to arbitrate did not precede the provision of emergency care.
If the trial court determines that the arbitration agreement itself complies with the provisions of the MMAA, and that other independent evidence demonstrates that the patient has been given a copy of both the agreement and the booklet in a nonemergency setting, then the agreement to arbitrate must be presumed valid. Once a showing is made which gives rise to the presumption, it will stand unless rebutted by evidence that either demonstrates noncompliance with the statutory requirements set forth above or establishes one or more defenses, such as coercion, mistake, duress, or fraud.
Evidence which a defendant might present to sustain his ultimate burden of persuasion could include proof of habit or routine utilized by the hospital in admitting its patients. We recognize, especially in a hospital setting, that it would be unrealistic to expect specific recall on the part of hospital admitting personnel in each individual
In order to give evidentiary force to the statutory presumption, as well as meaning and purpose to the MMAA, we disagree with the holding of Moore v Fragatos, supra, to the extent that it places the burden on the defendant to prove by clear and convincing evidence that the plaintiff knowingly, intelligently, and voluntarily waived his right to court access.
We do not infuse constitutional concerns equivalent to those in a criminal proceeding into a civil litigant‘s contractual choice-of-forum decision. A party‘s voluntary decision to arbitrate neither involves the complete relinquishment of a constitutional right nor raises the specter of procedural due process violations such as those presented in Fuentes v Shevin, 407 US 67; 92 S Ct 1983; 32 L Ed 2d 556 (1972). See Arkoosh v Dean Witter &
We further note that a person‘s decision to arbitrate a medical malpractice dispute and the consequential waiver of a jury trial in a civil case is not tantamount to deprivation of a fundamental constitutional right. The Constitution of the United States does not confer a federal constitutional right to trial by jury in state court civil cases.
The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law. [
Const 1963, art 1, § 14 . Emphasis added.]
The right to a jury trial in a civil action is therefore permissive, not absolute.
The MMAA incorporates various safeguards to ensure the fairness of the arbitration process. The statute requires that a patient be given a copy of the agreement to read and sign. A patient‘s signature evidences that he has read the agreement, which in turn recites that he has been given an information booklet that further explains the arbitration system. As an additional safeguard, the patient has a statutorily mandated sixty-day “cooling off” period within which he may unilaterally rescind the agreement to arbitrate. A statement in twelve-point boldface type emphasizes that a patient need not agree to arbitrate, and the prohibition against offering the agreement at the time a patient is undergoing emergency treatment contributes to an informed decision. Medical treatment cannot be withheld merely because a patient elects not to sign the agreement.
The MMAA and its concomitant contractual waiver of the right to court access and jury trial reflect the Legislature‘s response to a perceived medical malpractice crisis in Michigan. Arbitration has long been recognized as a viable alternative to the litigation process. Detroit v Jackson, 1 Doug 106 (1843); Chicago & MLSRC v Hughes, 28 Mich 186 (1873); Shapiro v Patrons’ Mutual Fire Ins Co of Michigan, 219 Mich 581, 586; 189 NW 202 (1922); Detroit v Kutsche & Co, 309 Mich 700; 16 NW2d 128 (1944).
If it had been the intent of the Legislature to do no more than establish a presumption which accrued only after the defendant fulfilled the burden of demonstrating a knowing, intelligent, and voluntary waiver, then the presumption would serve little or no purpose. The practical effect of placing
In Johnson v Secretary of State, 406 Mich 420, 432; 280 NW2d 9 (1979), we recognized the power of the Legislature to allocate the evidentiary burdens of the parties:
The burden of producing evidence is not invariably allocated to the pleader of the fact to be proved. That burden may be otherwise allocated by the Legislature or judicial decision based, among other factors, on an estimate of the probabilities, fairness and special policy considerations, and similar concerns may justify the creation, judicially or by law, of a presumption to aid the party who has the burden of production.
We now apply these principles to the cases at hand.
IV
In Guertin, plaintiff averred that he never received an informational booklet explaining the arbitration agreement and that at the time he signed the arbitration agreement it was simply presented for signature without explanation. The form and content of the arbitration agreement conformed to statutory requirements.
Although plaintiff specifically recalled not getting a copy of the booklet, he could not remember the date of his admission, how old he was on the
Plaintiff testified that it was his common practice to read materials provided to him and, further, that he was a high school graduate able to read and write.
Admitting clerk Victoria Gorney was involved in the admission of approximately 2,500 patients per year to the hospital and was unable to specifically recall the admission of plaintiff. But she did testify that it was her normal procedure relative to admission to supply each patient with an arbitration brochure. Mrs. Gorney testified that she followed the above procedure with every patient she admitted and she could recall no exception that occurred in December, 1979. It also appears that Mrs. Gorney informed patients to the effect that even if they signed the agreement and did not “renege” within sixty days, they could still “sue the hospital” in a court of law and still have the right to a jury, “if the arbitration agreement [sic, award] was in [their] favor . . . .”
Plaintiff argues that the agreement to arbitrate should be declared invalid because the standard explanation given by Mrs. Gorney to admittees was misleading.
The testimony of these two witnesses, plaintiff Guertin and Mrs. Gorney, formed the basis for the trial court‘s decision. It concluded that plaintiff had received the required information booklet on the basis of Mrs. Gorney‘s testimony concerning her habit and routine practices in the normal course of business. The trial court found the plain-
The Court of Appeals reversed the decision of the trial court on the basis that it had erred by allocating the burden of proof to the plaintiff. Guertin, supra, p 423.
We are disturbed by the explanation which Mrs. Gorney routinely gave to patients upon their admission to the hospital. Her explanation was inaccurate and misleading. However, there is no evidence which suggests that plaintiff signed the agreement in reliance on her representation. To establish either fraudulent or an innocent misrepresentation, a party must demonstrate that he acted in reliance upon the alleged misrepresentation. Hi-way Motor Co v Int‘l Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976); United States Fidelity & Guaranty v Black, 412 Mich 99, 117-118; 313 NW2d 77 (1981). Eaton Corp v Magnavox Co, 581 F Supp 1514, 1535 (ED Mich, 1984).
Here, the evidence does not demonstrate that the admitting clerk‘s representations were even a contributing influence upon plaintiff‘s decision to sign the agreement. In an affidavit submitted in support of his “Response to Motion for Accelerated Judgment,” plaintiff swore: “That at the time he signed the arbitration agreement it was simply presented for signature without any explanation.” This is consistent with plaintiff‘s testimony at the evidentiary hearing, where he could recall nothing said to him other than to “sign on the dotted line.” Plaintiff gave several reasons for signing the docu-
In a case such as this, where a key element is the believability of the witnesses, “regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.”
For the reasons stated, we conclude that the judgment of the trial court should be reinstated.
V
Mrs. McKinstry went to Saginaw General Hospital for a routine stress test ordered by her doctor. She went through admitting and was taken to the labor section where the stress test was performed. Shortly thereafter, she was advised by a physician that she was going to be admitted because she was spilling proteins into her urine and her blood pressure was elevated. Mrs. McKinstry was placed in a patient room and sometime later a hospital representative brought some papers to her room.
The form and content of the arbitration agreements signed by Mrs. McKinstry were in complete conformity with the MMAA statutory requirements. During the evidentiary hearing, Mrs. McKinstry conceded that her signature was on the arbitration agreements signed on October 17, 1978.
Mrs. McKinstry, a high school graduate, was no stranger to arbitration agreements. She previously
The admitting clerk for defendant hospital, Ms. Federspiel, could not recall the admission of Mrs. McKinstry six and one-half years before. She testified that the normal admitting procedure included offering the arbitration agreement with an explanation of its contents, and advising each patient who signed the agreement that he would have sixty days during which to change his mind. She also testified that each patient was provided with a copy of the booklet and the agreement.
Plaintiffs contend that Mrs. McKinstry was treated in an emergency situation. Mrs. McKinstry indicated that she was afraid and upset when first admitted, concerned over the welfare of her unborn child. She testified, however, that other than being upset she was “in [her] faculties” and was not physically ill.
We conclude that the trial court and the Court of Appeals properly allocated the burdens of the parties. We do not find clear error in the trial court‘s conclusion that defendants complied with the MMAA, that the arbitration agreements were valid on their faces, and that the plaintiffs failed in their burden to go forward with sufficient evidence to rebut the presumption of validity. Mrs. McKinstry was in sufficient physical and mental condition to sign the valid arbitration agreements and did so in a nonemergency setting.
Given the defendants’ prima facie showing of compliance with the MMAA, and the plaintiffs’
VI
In McKinstry, we are also asked to decide whether a plaintiff mother could bind her child to arbitration where she signed the agreement to arbitrate while her child was in utero.
Under
A minor child shall be bound by a written agreement to arbitrate disputes, controversies, or issues upon the execution of an agreement on his behalf by a parent or legal guardian. The minor child may not subsequently disaffirm the agreement.
Mrs. McKinstry not only signed an arbitration agreement involving her medical treatment, but she also signed such an agreement on behalf of the child, Amanda, who was not born at the time the agreement was signed. Mrs. McKinstry argued unsuccessfully in the Court of Appeals that Amanda could not be bound by the alleged arbitration agreement because a fetus in utero is not a minor child within the meaning of the statute. She also contended that if
In construing a statute, we primarily seek to determine and give effect to the legislative intent. Nash v DAIIE, 120 Mich App 568, 571; 327 NW2d 521 (1982), lv den 417 Mich 1088 (1983). As stated in 73 Am Jur 2d, Statutes, § 145, p 351:
In the interpretation of statutes, the legislative
will is the all-important or controlling factor. Indeed, it is frequently stated in effect that the intention of the legislature constitutes the law. Accordingly, the primary rule of construction of statutes is to ascertain and declare the intention of the legislature, and to carry such intention into effect to the fullest degree. A construction adopted should not be such as to nullify, destroy, or defeat the intention of the legislature.
Section
The logic of our position is borne out by the fact that neither a fetus in utero nor a minor child has the capacity to contract for medical care on his own behalf and can only do so through a parent or guardian.
The Court has, in other contexts, recognized that the rights of a viable unborn child are similar to those of a minor child. In LaBlue v Specker, 358 Mich 558; 100 NW2d 445 (1960), the Court recognized the right of an afterborn child to bring a dramshop action for damages as a result of the death of her putative father. In Womack v Buchhorn, 384 Mich 718; 187 NW2d 218 (1971), it was held that an action will lie at common law, by a person prenatally injured and hence born injured, for negligence. The status of the fetus in utero was further delineated in O‘Neill v Morse, 385 Mich 130; 188 NW2d 785 (1971), where the Court held that a viable infant en ventre sa mere (in its
The Womack and O‘Neill decisions establish that under Michigan common law a fetus in utero is a person for purposes of tort law if the fetus is alive subsequent to the alleged injury or if the fetus was viable at the time of alleged injury.
Thus, the status of a fetus in utero under Michigan common law regarding tort actions is consistent with our conclusion that a fetus in utero should be considered a minor child within the language of
Our interpretation of
In the case before us, we therefore conclude that plaintiff Amanda McKinstry was bound by the valid arbitration agreement signed by her mother.
VII
Accordingly, in McKinstry, we affirm the decision of the Court of Appeals.
In Guertin, we reverse the judgment of the Court of Appeals and reinstate the order of the trial court granting accelerated judgment for defendants.
RILEY, C.J., and LEVIN, BRICKLEY, and BOYLE, JJ., concurred with GRIFFIN, J.
ARCHER, J. (dissenting in Guertin only). I disagree with the majority‘s “presumption” analysis, and find the Court of Appeals holding in Moore v Fragatos, 116 Mich App 179; 321 NW2d 781 (1982) (which places the burden on the defendant to prove by clear and convincing evidence that the patient knowingly, intelligently, and voluntarily waived rights to court access and to revoke the agreement within sixty days), to represent the sounder approach.
As noted in Moore, supra, access to the court system is a fundamental right. Id. at 185. The Medical Malpractice Arbitration Act,
The question then becomes what quantum of evidence is necessary for defendants to sustain their burden. For the defendants to rely on rote testimony of habit and custom is clearly not enough. The true beneficiary of the MMAA is the health care provider. However, with the benefit should come the burden of producing clear, positive, and credible evidence that the statutory “safeguards to ensure the fairness of the arbitration process” have been strictly followed.
It is health care providers who should be the
There are numerous ways a hospital or physician can provide more than rote habit or custom evidence to support their burden of showing a knowing, intelligent, and involuntary waiver within the execution of an arbitration agreement.1 For example, a slight modification of the arbitration form to allow a space for the patients to initial the following seems to be the least burdensome: (1) that the patient has been given a booklet detailing the specific provisions of the arbitration agreement at the time of affixing the initials, (2) that the patient was given a copy of the agreement at the time of affixing the initials, (3) that the offer to arbitrate did not precede emergency medical care, and (4) that the patient has been informed that the offer, if accepted, can be revoked within sixty days if revoked in writing.
Under the majority‘s holding, all that is needed
I am more interested [in] what she did, if she can remember what [sic] this patient, not what she ordinarily does. This is what I have got to decide on.
While hospital employees simply say that they always offer the arbitration agreement in a manner consistent with the statute, the patient has the impossible burden of proving the arbitration agreement was not properly offered to him. Placing the burden on the plaintiff to show the invalidity of the agreement forces the plaintiff to prove a nullity, which is one of the most difficult things to do in the field of evidence. Yet, at a time, usually during admission to the hospital, when the plaintiff is likely to be apprehensive, scared, in pain, and least likely to absorb the importance of the documents he may be signing, the majority would have the plaintiff be responsible for gathering evidence to show that the statutory requirements were not complied with.
I am also concerned about the testimony of the
Perhaps safeguards could be adopted that would effectuate the policy of the Legislature. The patient should know what is being signed and what the result of that signature will mean. If accomplished, the result would facilitate proofs and diminish the likelihood of evidentiary hearings, which would save time for the court and the parties. The majority does not provide safeguards.
I therefore dissent from the majority‘s failure to place the burden of proof of clear, positive, and credible evidence on the health care provider and hospital.
CAVANAGH, J. (dissenting). As I have not been persuaded to alter my view of this statute as expressed in Morris v Metriyakool, 418 Mich 423, 475-487; 344 NW2d 736 (1984), I do not join the debate over the burden of proof.