*1 App 110 107 Mich MORRIS METRIYAKOOL 12, 1980, Docket No. 46598. Submitted November at Detroit. Decided 5, appeal granted, 412 June 1981. Leave to Mich 884. Morris, Plaintiff, agreement signed Delores M. an arbitration at Hospital the time of her admission to South Macomb for a hysterectomy. Metriyakool, performed Doctor S. who the sur- gery, agreement hospital had an with the to arbitrate all brought against hospital claims himself reason of the operation. Following surgery, plaintiff developed peritonitis. subsequently complaint She filed in the Macomb Circuit against Hospital Metriyakool Court South Macomb and Dr. alleging negligence surgical procedure in the which caused her develop peritonitis negligence failing promptly [17] [14] [11] [12, [18] [6, [7] [5] [4] [3] [2] [1, 61 Am Jur 2d Disqualification 61 Am 61 Am Setting Constitutionality of arbitration statutes. 55 ALR2d 432. Arbitration medical 7, 9, 5 Am Jur 16A Am Jur 8] 5 Am Jur 16 Am Jur 2d Disqualification 62. 13, 16 Am Jur 2d 16A Am Jur sion, or fraud of arbitrators. 65 ings by litegants. 72 ALR3d 375. 17 Am Jur 44 Am Jur arbitrators. officer for 5 Am Jur 15] 10, prior Jur Jur aside arbitration award on 5 Am Jur 16] 2d, 2d, 2d 2d pecuniary 16A Am 2d, 2d, 2d, References 2d, (Rev),Physicians, Surgeons, Physicians, Surgeons, (Rev), (Rev),Physicians, Surgeons, Arbitration Arbitration 2d, (Rev), award, of arbitrator (Rev), Contracts § Insurance ALR3d 697. Arbitration and Constitutional Law Constitutional Law 2d, judge, justice Jur Constitutional Law Constitutional Arbitration and Award 26.§ interest in 2d, for ground § 5. 1429. Constitutional Law 855-857. Points in Headnotes Award 6.§ Award court or ALR2d Award fines, forfeitures, of the claims. 84 ALR3d 375. interest, bias, §§ §Law ground §§ §§ 613, stay §§ 755. 98, § peace, and Other Healers 376. Other Healers §§ and and Other Healers 376. 8, 205. 791. 99. of arbitration 859. of interest or bias of 9. et §§ or similar seq. prejudice, or fees proceed- payable judicial § collu- § 28, Morris v diagnose The defendants moved the condition. and treat contending the execution of the case dismissal filing precluded court. suit in circuit Deneweth, J., submitted George that the matter be R. ordered *2 complaint plaintiffs the with dismissed to arbitration and (1) composition alleging appeals, prejudice. Plaintiff pro- constitutionally on due defective is the arbitration (2) Malpractice Act is grounds, Arbitration the Medical cess patient deprives it unconscionable as unconstitutional or relinquish meaningful opportunity his or decide whether to to a (3) access, right the arbitration to court her constitutional agreement Held: a contract of adhesion. constitutes voluntary decision to arbitration is a 1. Because submission process by safeguards provided in the which and because selected, Michigan provisions of the are the arbitrators Malpractice unconstitu- Act are not an Arbitration Medical right process plaintiffs of law even a to due tional denial of panelists required though to be a one of the physician. Malpractice Arbitration Act is 2. The Medical unconstitu- deprive patient of it does not tional or unconscionable since relinquish meaningful opportunity whether to his or a to decide right to court access. her constitutional agreement a contract of does not constitute 3. The arbitration adhesion.
Affirmed. Gillis, J., J. H. concurred in the result. P.J., part. part He concurred in and dissented Bronson, Malpractice Act is Arbitration would hold that the Medical failing provide facially a fair tribu- to for unconstitutional patient depriving the nal. The act is not unconstitutional for relinquish meaningful opportunity whether to his or to decide right access. The arbitration form her constitutional to court clearly patient a substitute for a informs the that arbitration is unconscionability by judge jury/ trial or Since a declaration of determinations, light manifestly policy of the affir- involves acts, legislative unwilling find the Medical mative he is Although Malpractice unconscionable. Arbitration Act to be atmosphere patient’s inherent in situation and the coercive sign hospital setting apparently to refuse to make it difficult required sign agreement, patient the arbitration is not hospital admission to the as a condition of such, agreement is not a contract treatment. As the arbitration remand for trial. of adhesion. He would reverse and 107 Mich op
Opinion the Court Malprac- Physicians Surgeons — — Medical 1. Arbitration — tice Act Statutes. Arbitration Michigan Malpractice The Medical Arbitration Act is not uncon- deprive or unconscionable since it does not stitutional meaningful opportunity to decide whether of a (MCL relinquish to court access his or her constitutional seq.). seq.; 27A.5040 et 600.5040 et MSA Physicians Surgeons Malprac- — — 2. Arbitration Medical tice Arbitration Act. establishing Malpractice Medical reasons for decreasing availability Arbitration Act included the as well as insurance, rising costs of medical the cost of health lengthy disposition care and the time involved in the of medical malpractice litigation. — 3. Constitutional Law Actions. proving alleged The burden of an constitutional violation rests on party asserting allegation it and such an must be sustained speculation reality. not as a matter of but as a demonstrable *3 — 4. Bias. Arbitration potential The for bias that would overturn an arbitration award remote, specu- must be certain and direct and not uncertain or lative. — — 5. Law Process Constitutional Due Access to Court. right process The of access to the courts is founded in the due person opportu- clause and assures that no will be denied the nity present judiciary allegations concerning to to the viola- rights. of tions fundamental Impartial — 6. Constitutional Law Tribunal. person hearing by impartial A is entitled to have a an and (US disinterested tribunal both in civil and criminal cases XIV). Const, Am — 7. Constitutional Law Bias. great The risk of actual bias is too for a fact finder to hear a case pecuniary where the decisionmaker has a in interest the out- come, target personal or has been the of abuse or criticism him, party before or was enmeshed in other matters involving petitioner, might prejudge or the case because of prior participation investigator, as an fact finder or decision- maker. Morris — Malpractice — Arbitration Act Stat- Medical 8. Arbitration utes. Malpractice an Arbitration is not Medical Act malpractice plaintiff’s right to due denial of a unconstitutional voluntary process submission to arbitration is a of law because safeguards provided process of the in the decision and because (MCL seq.; whereby et the arbitrators are selected 600.5040 seq.). MSA 27A.5040et by Bronson, Dissent Partial and Partial Concurrence Impartial — — Tribunal. Due Process 9. Constitutional Law process Generally, does to due law an individual’s part prove prejudice require litigant on the to actual a way tribunal; instead, composed a is in such a tribunal which may judges more of the great risk exists that one or that too a proceedings, personal in a interest the outcome have biased, constitutionally enough deñcient to it thus be render process grounds. on due —Law 10. Constitutional Bias. judge determining particular apply in to whether The test great that he will and create too risk tribunal be biased impartial the decisionmaker’s situation not be is whether average temptation person possible as a would offer a required proof might judge forget make him burden of competing required between the deviate from the balance parties. Physicians Surgeons Malpractice — 11. Insurance. malpractice legislation designed to The mere reduce enactment continuing availability does its insurance costs and insure not, by itself, legislation suffers constitu- indicate that the from
tional defects. — — — 12. Constitutional Medi- Law State Action Arbitration Malpractice cal Arbitration. action the medical There is more than a semblance of state system professional liability in- since necessity hospital-based physicians are surance is a virtual *4 disputes compelled by their to arbitrate with statute offer to agree- moreover, patients; the the mandated the form state has take, ment to must how the costs the arbitration arbitrate parties, will be be the the arbitrators will shared between how (MCL selected, composition arbitration and the of the seq.). seq.; 600.5040 MSA et 27A.5040 et 107 Mich — — — 13. Constitutional Law State Action Arbitration Medi- Malpractice cal Arbitration. pervasive State malpractice action is in the area of medical and, actuality, parties insurance and arbitration to the privately arbitration do not determine how the arbitration is to work. Waiver, — 14. Constitutional Law v. relinqitiskment There must be an intentional or abandonment of right right a known for the waiver of a constitutional to be effective. Malpractice — Agreement. 15. Arbitration Medical Arbitration agreement The arbitration mandated for use the state for malpractice provides medical arbitrations that an information explaining agreement provided patient; booklet to the agreement, itself, require does not has actually booklet, rather, read and understood the information patient acknowledges by all signature his her on the booklet, receipt form is handing and a near simultaneous signing required the booklet and of the form is all that is to statutory constitute a waiver under the scheme. Malpractice — — 16. Arbitration Medical Arbitration Act Due Process. Michigan Malpractice The Medical Arbitration Act is unconstitu- provide tribunal; facially tional for failure to for a fair portion relating composition of the statute to the of the arbitra- panels process by forcing litigant tion violates due of law to composed submit his or her claim to a tribunal which is in such way high probability that a exists that said tribunal will be against mandating biased the claimant without the use of an explicitly detailing panel’s arbitration form the nature of the makeup. Right— Appeal. 17. Constitutional Law to gives Constitution criminal defendants a appeal comparable right but no litigants is extended to civil (Const 1963, 1, §20). art — Malpractice op — 18. Arbitration Medical Contracts Adhe- sion. The medical agreement is not a contract adhesion; a contract of adhesion is one in which the con- accept sumer must presented order avail goods himself of the or services desired and in which the really consumer opportunity has no bargain terms; over although patient’s atmosphere situation and the coercive *5 Morris Opinion op the Court hospital setting apparently inherent in the makes it difficult to agreement, sign patient is not refuse to the arbitration sign required to the same as a condition of admission or treatment.
Lopatin, Miller, Bindes, Freedman, Bluestone, Silverman), (by Rosen, & P.C. Steven G. Erlich plaintiff. (by
Schureman, Frakes, Glass & Wulfmeier Ed- Jr.), Reynolds, Metriyakool. ward C. for defendant Kitch, Suhrheinrich, Smith, Saurbier & Drut- Arnone), (by Anthony chas, P.C. G. for defendant Hospital. South Macomb Cy- Bronson, P.J., J. Before: H. Gillis nar, JJ. Judge excep- J. has written an Cynar, Bronson
tionally comprehensive opinion. learned and agree with his conclusion that the arbitration is not a contract of adhesion. With agree hesitation, some Malpractice I also the Medical Act not unconstitu- Arbitration deprive tional or it unconscionable since does not meaningful opportunity of a to decide relinquish whether his or her constitutional right having to "court access”. While serious reser- vations, I believe the act to be constitutional even though requires physician it that a serve as one of panel. the three members of the arbitration experience supports Time-tested the belief that right jury provided to a under the trial as United States and Constitutions is a precious right carefully most which should be protected, knowingly only and waived if done so agree- voluntarily. Perhaps the arbitration purpose ment would if it best serve its intended 107 Mich Opinion op the Court would indicate that three one mem- physician hospital bers would be a administra- important jury tor. As as the to a trial decreasing availability rising be, the as well as malpractice insurance, costs of medical the cost of lengthy care, health disposition and the time involved in the malpractice litigation of medical were seeking some of the reasons for settling other *6 means disputes. health care Michigan statute, The arbitration MCL 600.5040 seq.; seq., Sep- et MSA 27A.5040 et took effect on provides tember 1975. The statute for arbitra- litigation tion as an alternative to health care crisis. The to alleviate the
tug pull opposing compromise interests have in resulted legislation, than less ideal if such can ever be eyes jury achieved in the of all. The bench and system trial has been tried and tested. The Michi- gan statute differs from those in other states in aspects, particularly standpoint some providing from the binding advisory rather than arbitra- tion. Whether medical arbitration adequately act will function to meet the needs of people remains to be determined future experience. case physi-
Plaintiff contends that the inclusion of a cian on the arbitration is a denial of due process physician because the does not sit as a party adversary neutral but rather as an cloaked statutory disguise. in a It is further contended that physicians invariably against unite as a clan mal- practice unity claimants and that such is moti- by professional by pecuniary vated not ethic but physician So, considerations. claimed, it is no can judgment against sit in of a claim physician. another proving alleged
The burden of
an
constitutional
Morris
v
Opinion of the Court
v
Morey
asserting
violation rests on the
it.
party
Doud,
457;
1344;
354 US
77 S Ct
Such an
must be sustained not as a
speculation
matter of
but as a demonstrable
real-
Washington,
See Beck v
541;
US
82 S Ct
ity.
369.
(1962). Further,
955;
In Michigan, far the most important case is Crampton State, Dep’t 347; Mich (1975). NW2d 352 case, In that Crampton was arrested by police officer from the Lansing Police Department. On appeal to the Appeal License Board, another Lansing police officer, representing Police, the Chief sat on the Appeal License Board to determine implied issues related to the consent law. The Court held that such a was not a fair and impartial tribunal that could consti tutionally permitted to sit as adjudicators *8 law enforcement dispute between a citizen and a Morris v Opinion of the Court Crampton forth several criteria officer. sets police finder to hear a fitness of a fact evaluating great too The actual bias is where case. risk of in the interest pecuniary has decisionmaker personal abuse outcome, target or has been him, en- or was party before by or criticism involving the petitioner, in matters meshed other prior partici- the case because might prejudge finder or decision- investigator, as an fact pation maker. Crampton Court is found reasoning
The Court where the states: 357 and pages prose- suggest police officers and "We do not deeply and they But are are not fair-minded. cutors fight against violators. law personally involved and they are identified law enforcement officials As adversary citizen as aligned with the state charged the law. Their function with violation of who is may expected to make them frame of reference and authority that of 'partisan to maintain’ their own and they unable to fellow The risk that will be their officers. law step out of their roles as full-time enforcement the role of unbiased decisionmaker officials into dispute a citizen and a law enforcement police between presents probability officer of unfairness too high constitutionally to be tolerable.” Ward, in the Tumey, procedure present Crampton Gibson cases which a decision- is from the substantially maker selected differs First, provided case before us. the arbitration MCL herein is revocable. voluntary (1)-(3). (1)-(3); 600.5041 MSA 27A.5041 subds subds party Each have and exercise counsel rights in civil trials. MCL adversary normal extant se 600.5043; 27A.5043. The arbitrators are MSA statute, MCL governed lected from a both pool (3)-(5), (3)-(5); MSA 27A.5044 subds 600.5044 subds *9 App 107 Mich Opinion of the Court Association, and by the American Arbitration 27A.5040(2)(a). 600.5040(2)(a); MCL par- MSA The ties choose their may own arbitrators. MCL 27A.5044(6). 600.5044(6); MSA parties rights are afforded liberal of chal- If lenge. parties themselves cannot agree panel, the association shall select or a member thereof. In provides: addition the statute appointment by
"The subject association shall be challenge by to any party challenge for cause which may allege facts to establish that unusual community professional pressures will unreasonably influence (MCL objectivity panelist.” 600.5044[5]; MSA 27A.5044[5]). two of
Additionally, the three arbitrators render an enforceable award. The plaintiff con- tends that the presence of a physician provides an advocate on the tribunal. Herein lies the crux of the problem before us. Can a practicing physician maintain as a neutrality decisionmaker? I am not able to find any reasoning in Crampton which would disqualify any and all physicians from sit- ting as fact in finders medical arbitrations solely because of occupation. Whether will system workable remains be seen.
Because submission to arbitration is a voluntary decision and because of safeguards provided in process whereby selected, the arbitrators are medical arbitration act not an unconstitutional denial of a malpractice plaintiff’s right process due of law.
Affirmed.
Gillis,
J.,
J. H.
concurs in the result
reached
Cynar,
J., for the reasons set forth in
opinion
Morris
by Bronson,
P. J.
v Siang,
J.,
Brown
Bashara,
107 Mich
(1981).
91;
Following the hysterectomy, plaintiff developed peritonitis. 19, 1977, plaintiff On July filed a com- *10 plaint in the Macomb County alleg- Circuit Court ing negligence surgical in the procedure, causing her to develop peritonitis, negligence in failing to promptly diagnose and treat the condition. De- case, fendants moved for dismissal of the contend- ing that the execution agree- of the arbitration ment precluded filing suit in circuit court. Plaintiff resisted the arguing dismissal that the medical MCL 600.5040 et seq.; malpractice act, arbitration MSA 27A.5040 et seq., was defec- constitutionally 19, 1979, tive. July On the trial court ordered the matter submitted to arbitration and dismissed plaintiff’s complaint with Plaintiff prejudice. now appeals as of right. problem
The first we confront is whether composition of the panel arbitration is constitu- defective on tionally process grounds. due US Const, XIV, 1963, 1, Am Const art MCL §17. 27A.5044(2) 600.5044(2); MSA mandates a three- member arbitration panel malpractice for medical claims. One of these arbitrators must be a physi- cian, from medical preferably respondent’s specialty. Whether on the presence of a doctor App Í10 107 Mich by Bronson, P.J. has process of due is violative panel this before of cases in a number been considered courts of these The majority circuit courts. state’s constitutionally is statute held that have this unanimity on However, there is sound.1 score.2 an individual’s general proposition,
As a litigant require does not process due of law of the tribunal. part on prove prejudice actual composed such Instead, is a tribunal which one or more exists that a risk great too way in the interest a personal judges have of the biased, and thus be proceedings, outcome of the deficient constitutionally it enough to render of Monroe Village vWard process grounds. due ville, 80; 34 L Ed 2d 57, 59-61; 93 S Ct 409 US 564, 578-579; 93 Berryhill, Gibson v (1972), US Con (1973), 488, 499-500 1689; 36 L Ed S Ct 2d 245, 249-250; 546; 97 S Ct nally Georgia, v 429 US Dep’t (1977), Crampton 444, 447-448 50 L Ed 2d State, 355-356; 235 NW2d 395 Mich issue, then, (1975). first of this The resolution the medical mem- us to ascertain whether requires interest in the such an has ber is too there outcome of cases Ward, In impartial. not be great a risk he will *11 to that the test supra, stated Supreme Court the decision- the situation apply was whether tempta- possible maker in would offer a question forget average judge tion to the as a person him devi- might make required proof burden of 1 See, e.g., Jayakar (Wayne County, 78- Civil Action No. Malek v 79-07-627-NM), (Lenawee 802-604-NM), Yager County, No. v Locke (Oakland 79-187-555-NM), Chaston County, Lorenz v Mendelsohn No. 80-18636-NM), Pipper v DiMusto County, v Stubbs No. Washtenaw 76-8188-NM). (Macomb County, No. 2 See, (Wayne County, Manuel v Pierce 79-929209- Civil Action No. (Macomb Taylor NM), County, v Detroit Bank & Trust Co No. 77- 1906-NM). Morris v by Bronson, P.J. compet- balance between the required ate from the ing parties. Ward, mayors authorized the
In an Ohio statute in cases judges to sit as jurisdictions of various and certain traffic ordinance violations involving Village of the portion A offenses. substantial from reve- total income was derived Monroeville’s Although court. brought mayor’s nues actually that was mayor was no evidence there proof nor he handled these cases unfair in how status was personal pecuniary mayor’s that levied, Supreme he the fines enhanced temptation” "possible that Court determined responsible was mayor exist since the might finances. village pecuni contend that appeal any on
Defendants
is too
part
a doctor-arbitrator’s
interest
ary
the conclusion
support
and remote
speculative
offends due
panels
composition
Strykowski Wilkie, ex rel
State
In
process.
(1978),
491, 515;
State of both "(a) insurance; Availability of and ''(b) premium paid The amount of the therefor. words, hospitals physicians placed category in "In other all or are one Thus, malpractice regardless purposes of medical insurance. of the the particular physician hospital, individual medical determined against track record of a or malpractice respect generally insurance rate with thereto is claims, settlements, judgments and the number of hospitals Any physicians physician- all other or in this state. arbitrator has a vested interest proceeding in the outcome of the arbitration sitting in which he is as a trier of fact.” provided part: Mr. LeMoreaux’s affidavit in training, upon my experience "12. That the based and inter-rela- tionship that reserves and exists between trend factors as follows: (a) increases, malpractice as claim size the medical insurance pending carrier increases the size of its reserves on tends to increase the size of the reserves on future claims and such (b) claims; when (c) increased, increased; the reserves are rates are also and single malpractice individual effect of a claim in the medical insur- given relatively ance area is direct and substantial small number existing relatively of claims and a area of medical in the small number insureds malpractice. upon my experience training, "17. That based of a and effect particular cation classification but each and against physician particular claim made in rate classifi- (specialty) only physicians would not effect in that [sic] specialty every physician regardless Michigan. or classification within the State of upon my experience training, “18. That an based and upon every physician award would have a universal effect each and respect within the State of cost of medical with to th [sic] malpractice availability insurance and the thereof. upon experience training, although my "19. That based medical factors, malpractice cost as reflected in the insurance rate is the amount major insurance rates reflect a number of paid judgment claimant vis-á-vis a or settlement. upon training, physician my experience "20. That based arbitrator, specialty classification as whether or not in the same proceeding physician, in the arbitration the defendant has an interest 107 Mich by Bronson, P.J. impetus enactment of behind I also consider the malprac Michigan’s medical our sister states’ reaching systems in tice mediation or arbitration agreed among generally It is decision on this issue. subject the late 60’s and commentators on termed a medi what has been 70’s have witnessed malpractice This crisis has insurance crisis. cal manifested itself spiraling costs to insurance providers reduction care and an actual health the number of practice offering
companies mal medical Many it have found insurance. doctors price. any insurance at difficult to obtain adoption legislative response has been the of vari systems costs ous and rance The most to reduce medical continuing availability insu insure the .6 popular system type involves *14 plaintiff proceeding if an award is rendered in favor of insofar as such upon availability the of has a direct and substantial effect medical both respect malpractice the cost with thereto. insurance and training, given upon my experience and the non- "21. That based administrator, hospital job responsibilities hospital the medical administrator has a built-in bias in the area of medical malpractice insurance, affordability availability and of such insur- both as to the ance. training, any upon my experience "22. and award in an That based upon proceeding a direct and effect arbitration the insurance rates would have substantial Michigan. every hospital of within the State of upon my experience training, "23. number That based a small physicians hospitals of are self-insured. and a number of within the State of upon my experience training, physi- "24. That based that the hospital who is self-insured or the that is self-insured establishes cian its own reserves and respect money aside with the amount of that is set directly rating thereto is related to the I.S.O. structure.” 6 see, Potaki, Among Screening others Sonbar & Arbitration and (1978),Redish, Malpractice, City Panels in Medical Legislative Response U L Rev 33 Okla Malpractice to the Medical Insurance Crisis: Abraham, (1977), Implications, Constitutional 55 Tex L Rev 759 Malpractice Preliminary Analysis, Medical A 36 Md L Rev Reform: (1977), Comment, Michigan’s Malpractice Legislation— Medical Defects, Law, (1978), Prognosis: p Curable 55 U of D J of Urban Comment, Malpractice The Constitutional Considerations of Medical Panels, Screening (1977), Comment, 27 Am LU Rev 161 Recent Malpractice Legislation Checkup, Medical First 50 Tul L Rev 655 —A (1976),Note, Malpractice Medical Mediation Panels: A Constitutional (1977). Analysis, 46 L Fordham Rev 322 Morris by Bronson, P.J. screening panels prior mandatory to the use of provide systems All of these institution of suit. panels care at one health which include least voting systems provider; all members are in some screening, plaintiff Following physicians. the the if trial novo unsatisfied with seek a de majority states allow rendered. The result screening panel into to be admitted decision of evidence,7 universally although true.8 this is that mere enactment no There can be doubt malpractice designed legislation insur- to reduce continuing availability to its insure ance costs legislation by itself, not, said indicate that does Indeed, constitutional defects. from suffers goals At admirable. the same to achieved are be myself the fact time, however, I cannot blind large by legislation by and such is backed physi- professionals. It is obvious that health-care cians, they themselves, will fare better believe systems they direct decision- under where have op- making responsibilities in cases as individual jury system. posed'to course, traditional Of proof physician-arbitrator will this is not including purpose Ostensibly, be biased. panels that an arbitra- doctors on the is insure expertise, unswayed by sympa- tor with medical passing thy, is instrumental goal questions. However, I believe this could resorting physicians use of achieved without Any professional un- arbitrator as arbitrators. *15 reaching likely swayed by sympathy to exper- malpractice questions. on Medical decision 7 (Cum 1976), E.g., Supp Ind Ann 16- Ariz Rev Stat 12-567 Code § §§ (Burns 1976), 231, Supp 60B Cum Ann Laws ch § 9.5-9-1 to 9-10 (Michie/Law Mass (West 1977), Co-op Supp Ann 655.02-21 §§ Cum Wis Stat 1977). Pamphlet Spec (Cum 1975), Supp Kan Stat 8 E.g., 2612 Ark Ann to §§4-2601 Stat 1976). (Cum Supp to 4908 65-4901 128 107 Mich 110 by Bronson, tise presented could be to an panel as it has traditionally presented been juries, through expert The inclusion testimony. of health care professionals then, panel, seems at least in part to be intended to insure that doctors have an advocate on the tribunal. addition,
In
relatively recent cases and articles
have commented on the unwillingness
among med-
practitioners
ical
to testify against one another.
e.g., Morgan Rosenberg,
See,
(Mo
v
With reference police department ney sit- the local General and responsibility ting it towas whose the tribunal person’s should be license driver’s if a determine Cramp- Supreme Court revoked, the supra, ton, held: prose- officers and suggest police not "We do deeply and they are But not fair-minded.
cutors are fight against law violators. in the involved personally they are identified officials enforcement As law citizen adversary of the as the aligned with the state law. Their function charged with violation who is them expected to make may be frame of reference that of authority and their own 'partisan to maintain’ they will be unable The risk that fellow officers. their enforcement full-time law their roles as step out of decisionmaker of unbiased into the role officials and dispute a citizen and between enforcement a law too probability of unfairness presents a police officer Id., 357-358. constitutionally tolerable.” high to be omitted.) (Footnotes suggest Similarly, are not that doctors do generally However, arbitrators who fair-minded. community identi- are the medical are members of hospital aligned physician as with fied adversary Their claimant. of expected may of reference” "function and frame professional partisans col- of their them to make leagues.11_ suggested difference be there is no essential 11 It has been grievance procedure used medical arbitration board and
tween a disagree. attorneys. I are State Bar where all decisionmakers taken disciplinary action should be grievance if boards decide The against profes adjudicate of lawyers, they claims do not individual attorneys on the malpractice. There is no reason to believe sional disciplining practitioners and are biased fellow are desirous of board malpractice arbitra against medical If a statute similar to the them. malpractice, legal of in reference to claims act was enacted tion problems process would exist. due same Mich by Bronson, Partial Concurrence high probability of The fact that there is a bias composition of caused the arbitration aspect boards is insufficient declare this legislation unconstitutional. There also must be a finding state action. Some the lower court *17 opinions system have held that the arbitration solely private contracts, relies without sem- disagree. 500.3053(1); state I blance of action. MCL 24.13053(1)provides: MSA doing "As a condition of business this state a malpractice profes- policy insurer shall not offer a liability sional policy any hospital insurance unless the provision upon contains a in the form and such other conditions approve, as commissioner shall requires which the insured to offer a form of arbitration agreement to each or treated admitted.” liability Professional sity is insurance a virtual neces- provision compels hospital-based so that this physicians disputes to offer to arbitrate their with patients.
Moreover, the state has mandated the form the
agreement
take,
to arbitrate
600.5041;
must
MCL
27A.5041,
MSA
how
costs
the arbitration
parties,
will be shared between the
how
arbi-
composition
selected,
trators will be
and the
of panel.
600.5044;
arbitration
MCL
MSA 27A.5044.
actuality,
parties
privately
In
do not
determine
how the arbitration is to work. State action is
pervasive
in the
area medical
insur-
Attorney
ance
Cf.,
and arbitration.
v
Shavers
Gen-
(1978).
eral, 402
554;
Mich
267 NW2d 72
persuasive argument
up-
Defendants’ most
for
holding Michigan’s
system
is that
parties voluntarily
entered into the
premise
arbitrate.
start
from the
waiver
aof
constitutional
effective,
to be
131
Morris v
by Bronson,
relinquishment
there must be an intentional
or
right.
abandonment
Zerbst,
of known
Johnson v
458, 464;
304 US
58
Ct
82
1019;
S
L
1461
Ed
(1938), People
Jaworski,
v
21, 30;
387 Mich
194
(1972), People Grimmett,
NW2d 868
590, 598;
v
388 Mich
(1972),People
Lucas,
202
278
NW2d
47
v
App
(1973),
385, 388-389;
Mich
nothing panel. composition about the of the probability patient agreeing It is a that a panel arbitrate will not understand the in- that physician cludes as one of its members. Defen- attempt argument noting dants to counter this patient that a booklet, information which must be given agree to all arbitrate, individuals who explains panel composed. However, how the is the agreement, provides: itself, face of the certify "I I that have agreement read this have had it read to me and that I fully understand its 110 107 Mich 132 by Bronson, P.J. my agreement free own this content execute copy complete the booklet received
will. have which agreement.” explains this ndo12 actually patient argue Assuming that agreement, the arbitration does understand agreement, patient require that itself, not does actually the information understood read has acknowledges by patient Rather, all the booklet. receipt signature is on the form his or her handing book simultaneous A near booklet. required signing that is is all of the form let and statutory scheme. under a waiver to constitute that even this however, Defendants, contend safeguards adequate because there are situation compo- describes information booklet the sition, days patients the time of from have These facts their consent. to revoke execution certainly patient legislative concern some show nothing guarantee rights, they a know- do but ing It cannot first instance.13 in the waiver patient presumed read the will later that Moreover, even if the information booklet. malpractice has oc- booklet, that does read apparent days frequently after the curred is provides "I have self-serving language of the form which binding on this to me” is not or had it read read this nothing insures that illiterates in the statute which Court. There is and those with personnel. might by hospital reading identified difficulties will be volunteered, person Thus, such a unless this information nothing sign what it about the form and understand well means. proceeding this analogy weakness of reveals the An to a criminal requiring Legislature passed argument. Suppose a statute asking presented him to every with a form criminal defendant be provided jury Suppose this statute also his to a trial. waive every panel. signing be tried an arbitration defendant the form would *19 However, explain that one of the arbitrators the form did not Obviously, officer, requires. police such the statute must be a which the summarily even if execution. stricken down the courts would be scheme defendant given time to revoke his consent after was some Morris by Bronson, agreement.14 time he or she has the executed It patient presumed cannot be that who reads the agree- booklet will make the effort to the revoke problems apparent ment where no have arisen. Finally, patient booklet, if the even reads the it explain does not panel that the medical member the preferably will from come within the defen- specialty, community dant’s where the of interest strongest. likely is to be
Up point only to this dealt have with those actually who can read individuals English and understand enough comprehend well to what has been Michigan’s Malprac- Comment, written. In Medical Legislation Prognosis: Defects, tice Curable 55 U — (1978), pp Law, of D J of Urban 326-327 the patient author that the *20 App 107 Mich by Bronson, P.J. Concurrence Partial no by professionals there is pared largely that patients com- should that to assume complicated valid reason concepts legal contained prehend the Hospital, Joseph v St See, also, Wheeler therein. (1976), Rptr 775, 786 133 Cal 345; 3d 63 Cal in the Enforce- Problems Henderson, Contractual Malprac- Agreements Medical to Arbitrate ment of (1972). 947, 986 tice, L Rev Va problems urged by with that defendants It is patients parts comprehension individual on the potential present merely defenses contractual disagree as because as such. treated should be currently system is the state-fostered any unlikely inherently indi- that it is structured agrees will understand arbitrate vidual who por- implications The process decision. of this due composition relating to the statute tion of the process panels of law due violates the arbitration litigant forcing her claim his or to submit way composed in such a a tribunal which high probability be tribunal will that said exists mandating against without the claimant biased detailing explicitly form of an arbitration the use makeup.15 panel’s I am not Since the nature of Legislature have enacted would that the convinced Malpractice Act without Arbitration Medical pan- physician providing the arbitration 600.5044(2); MSA els, MCL I cannot sever 27A.5044(2) uphold of the act from the rest Consequently, remaining provisions. I hold statutory devised imply scheme could be that no 15 Ido not mean However, system minimum such a at a is not unconstitutional. which Legislature composed. was have to detail how would would also be well be read to the agreement require that an arbitration advised to does not patient. that a statute which I do not contend necessarily provide would for an oral review constitutional, However, such if held to be even unconstitutional. system solely susceptible on contractual to attack based would be grounds in individual cases. Morris v by Bronson, the act is unconstitutional for failure to pro- vide for a fair facially tribunal.
II Plaintiff also contends that the medical malprac- tice arbitration act is unconstitutional or uncon- scionable it deprives as of a meaning- ful opportunity to decide whether to relinquish his *21 or her constitutional right to "court access”. As to aspect claim, the constitutional of the it reject out of hand. The arbitration form clearly informs patient the that arbitration is a substitute for a by judge trial or jury. While it is true that the form explain does not the truncated appellate rights a plaintiff agreeing to possesses,16 arbitrate due process require does not appellate review at all. Spangler, 360, Moore v 401 368-369; Mich 258 (1977). NW2d 34 Although the Constitu- gives tion right criminal defendants a appeal, to 1963, 1, 20, Const art comparable no is § litigants.17 extended to civil grounds specifies 769.9 on what an arbitration award 16 GCR part: may provides be vacated and in relevant "(1) Upon application party, of a the court shall vacate an award where: "(a) procured by corruption, The award was fraud or other undue means; "(b) partiality by appointed There was evident an arbitrator as a corruption any neutral or ing prejudic- of the arbitrators or misconduct rights any party; the of "(c) powers; The arbitrators exceeded their "(d) postpone hearing upon The arbitrators refused to the sufficient being cause the shown therefor or refused to hear evidence material to controversy hearing prejudice or otherwise so conducted the as to substantially rights party.” the of a again, however, patient Once the failure to advise a of the nature appellate rights may of his in an action to might should he choose to arbitrate be a defense compel litigation. This unknown and undisclosed term "range expectation” be held to exceed the of reasonable patient executing the Enforcement of See, Henderson, agreement. would have in the Agreements Contractual Problems to Arbitrate Malpractice, supra. Medical Mich by Bronson, unconscionability trou- is more of The claim involving emergency bling. typical case In the agree patient to arbi- to is asked treatment, arising care he any of the out claim trate patient provided. may knows It well be prerequisite to is not execution atmosphere is However, coercive care. health presentation timing by created agreement the circumstances hospital. It is in the while himself under finds probable they patients many will believe treated better at least be care or receive better agreement. they hospital if execute staff patient’s Additionally, care need for medical appreciate truly him unable to well render patient may be The nature of arbitration. the preoccupied sign willing anything handed to states in Contractual Henderson him. Professor Agreements in the Enforcement Problems supra, Malpractice, 987: Medical Arbitrate services of the medical the distinctive nature "Given transaction, form runs the a standardized the use of policy of awareness. failing satisfy risk of *22 perspective the of provision, viewed from arbitration subsidiary primary the ex- patient, indeed to the is undertaking pay- of for an change of medical services procedures, the con- consenting to medical ment. After tract that no may fairly assume purchaser of medical services payment of are obgliations other than that entity, guidance by the medical imposed. Absent some all anything at patient has little reason to know arbitration, document about let alone that the tendered ordinarily entity requires it. the medical Nor should expect arbitration clause. faced with theless bound patient to understand a broad to read or even is In a court these circumstances never- question of whether the he that the term since knew resolving writing embody contract terms. In was used to executory peculiar question, a consideration to all Morris v by Bronson, agreements arbitration weighted well be heavily in only resisting medical context. Not is the party (presumably patient) claiming knowledge of lack of term, the arbitration from prevented but he asks not to be
litigating consequential controversy loss was also unknown and non-existent at the time of contracting. light, knowledge in Viewed this factor (Footnotes omitted.) in impact.” is doubled its 1, 1969,
Between July beginning and the 1970, California, an arbitration project southern involving eight hospitals, sought to collect statisti- cal data about the cost effectiveness of arbitration compared 500,000 to trial. pa- Of more than tients admitted into participating hospitals, only 1,800 sign refused agreements. Nonetheless, large numbers of patients later con- tested the legality agreements of their by institut- Heintz, Arbitration of Medi- ing malpractice suits. Malpractice cal Effective?, Claims: Is It Cost 36 Md (1977). L me, Rev 537-538 To suggests this patients that many really do not feel free to refuse to sign agreements. It is difficult for me patients believe that made an actually informed choice, without compulsion, where less than one half of one percent of the total chose not to exe- cute an arbitration agreement.
I think offering the patient opportunity execute the arbitration agreement prior to admis- sion or while in the hospital during treatment represents However, bad policy. policy-making is legislative prerogative. The Michigan Legislature Malpractice enactment the Medical Arbitra- tion Act practices has endorsed affirmatively believe are objectionable. part Except as noted I, supra, however, I do not find the consti- statute and, tutionally deficient since a declaration unconscionability manifestly policy involves deter- *23 107 Mich by Bronson, legislative light ruinations, the affirmative unwilling this acts, the statute on I am to void basis.
Ill reject plaintiffs I contention that the arbitration agreement represents a contract of A adhesion. contract of adhesion is one in which the consumer accept agreement presented must in order to goods avail himself of the or services desired. The really opportunity bargain consumer has no significant over terms. The feature of a contract party adhesion is the has no influence over weaker supra, Although pa- Wheeler, its terms. 783. atmosphere tient’s situation and the coercive in- hospital setting apparently herent makes it sign agree- difficult to refuse to the arbitration required sign ment, the is not the same as a condition of such, admission or treatment. As the is not a contract of adhesion.
I would reverse and remand for trial.
Appendix A approved by This form is Commissioner of Insurance ARBITRATION AGREEMENT Physician-Patient Out-Patient Form my physician(s) I understand that *24 Morris by Bronson, P.J. Partial Concurrence agree any signing to arbitrate this document (except disputes disputes over claims or rendered) may charges in which arise for services my with medical future out of or connection care. Michigan gives me the
I that Law understand jury by judge I trial or or of arbitration. choice of procedure by that arbitration is a understand mutually agreed upon panel that is either which a dispute appointed than a rather or decides jury. freely judge arbitration, I I choose or judgment any agree circuit court that a upon any or determination made rendered pursuant award agreement. I
to this also understand any be conducted in accordance arbitration will Michigan Medical Law and the with approved by Rules, the Commis- as Arbitration of Insurance. sioner agreement to arbitrate is
I understand that this binding my agents, representatives all on me and assigns, my physi- and heirs and cian(s). as well as my physician(s) I also understand that if act(s) employee Corporation as an of a Professional partnership employee or as an or member of a providing my care, medical the Professional when Corporation partnership by this or is also bound agreement. agreement apply any future claims
This shall disputes arising with or out of or connection period year of one medical care received over from this date. certify agreement I or have
I have read this fully it read to me that I understand its had my this own content and execute complete copy will. have received a free explains agreement. which this booklet 107 Mich by Bronson, PREREQUISITE IS ANOT TO ARBITRATE THIS AGREEMENT TREATMENT, REVOKED AND MAY BE HEALTH CARE OR TO IN EXECUTION BY NOTIFICATION DAYS AFTER WITHIN 60 WRITING _TO: Print) Print) (Type (Type or Physician Patient Name Name Signature Signature Patient Physician Corpor- Patient Address of Professional Name partnership, any if ation or *25 (I certify parent I am the Address child, guardian minor legal representative or other involved.) Date legal guardian parent,
Name of representative legal or other (type print) For Use Instructions proposed Give Booklet with agreement Signature legal patient; parent, if signed, place guardian legal agreement is or other patient’s duplicate original representative file. Arbitration For Further Information Contact: American Association - - - Detroit, Michigan City Building Bank National No. (800)482-0660 Phone: notes information booklet agreement pre- and the arbitration forms were case, issue 60-day While this was not raised the instant the period revocation is an onerous unreasonable burden which presents process questions, 60-day period due itself. revocation is agreements "hospitals” found in the arbitration both with 600.5041(5); providers”. 27A.5041(5), "health care MCL MSA which pertains agreements providers”, gives to with "health care those who agree days agreement to arbitrate from the execution of the the right agreement to If year, revoke. the not is revoked its life is one 600.5041(4); 27A.5041(4). Thus, possible MCL MSA it is under the person right bring statute for a to have the lost an action for malpractice numbers of ramifications of this right increasingly greater before the even accrued. Since surgical procedures hospitals, are conducted in the provision surgery are immense. Where is not required immediately, non-hospital could,get agree based doctors during ment to arbitrate executed an initial visit then schedule surgery days later, thereby insuring or 62 alleged must arbitrate if is later occurred. have This problem 27A.5042(3). 600.5042(3); does not exist in relation to MCL MSA patients likely right it Nonetheless is will lose they revoke malpractice. before discover the Besides being questionable process grounds, differing on due revocation provisions present may protection equal problem they also an since patients create one class of who waive their to institute a court action patients before treatment has one occurred and class of days who at have least 60 to consider results of deciding questionable treatment before whether to revoke. It disparate whether a basis rational exists for the treatment of these groups. two