Roberts v. McNamara-Warren Community Hospital
360 N.W.2d 279
Mich. Ct. App.
1984
Check Treatment
Per Curiam.

Plaintiff appeals by leave granted from the trial court’s order compelling arbitration of her medical malpractice claims against defendants McNamara-Warren Community Hospital and Carroll Knauss, D.O. Defendant Basil Marrella, D.O., is not a party to this appeal. We reverse.

On March 7, 1979, when plaintiff was 16 years old, she was admitted to McNamara-Warren Community Hospital for a laparoscopy procedure. Plaintiff’s mother signed a standard arbitration *693 agreement, a copy of which is contained in the trial court record. During the laparoscopy, plaintiff’s uterus was lacerated, resulting in serious complications. Plaintiff waited until she was 18 years of age to file this medical malpractice action against the defendants.

Defendants McNamara-Warren Hospital and Knauss filed motions to dismiss plaintiff’s action on the ground that it was barred by the arbitration agreement signed by her mother. Following arguments on the motions, the trial court ordered plaintiff to arbitrate her medical malpractice claims against these two defendants.

Plaintiff raises several arguments on appeal, all of which were raised and thus preserved at the trial court level. We find one of plaintiff’s arguments dispositive. Plaintiff contends that the arbitration agreement is unenforceable because neither she nor her mother was provided the information brochure required under MCL 600.5041(6); MSA 27A.5041(6). Arbitration agreements under the malpractice arbitration act, MCL 600.5040 et seq.; MSA 27A.5040 et seq., are not legally enforceable unless obtained in strict compliance with the requirements of the statute. Ewald v Pontiac General Hospital, 121 Mich App 793, 797; 329 NW2d 495 (1982). Section 5041(6) of this act provides:

"The form of the agreement promulgated shall be accompanied by an information brochure which clearly details the agreement and revocation provision. The brochure shall be furnished the person receiving health care at the time of execution. The person receiving health care shall be furnished with either an original or duplicate original of the agreement.”

Failure to supply the patient with a copy of the brochure results in an unenforceable arbitration agreement. McCloy v Dorfman, 123 Mich App 710, *694 716-717; 333 NW2d 338 (1983); Ewald v Pontiac General Hospital, supra.

No evidentiary hearing was conducted in the instant case to ascertain the circumstances surrounding the signing of the arbitration agreement. According to the deposition testimony of plaintiffs mother, Shirley Roberts, she was given the arbitration form along with several other forms at the time of admission. Plaintiffs mother recalls being told by the admitting clerk that she was not required to sign the form but does not recall being given any information brochure and does not recall having engaged in any other discussion regarding the arbitration agreement.

An arbitration agreement is a contract requiring the mutual assent of the parties. Thus, the threshold inquiry in determining whether a matter is subject to arbitration is whether an arbitration agreement exists. Horn v Cooke, 118 Mich App 740, 744; 325 NW2d 558 (1982). This Court has held that the burden is on the defendant to show that plaintiff knowingly, intelligently, and voluntarily waived his or her right to court access. Moore v Fragatos, 116 Mich App 179, 186; 321 NW2d 781 (1982). In light of these general rules, we conclude that defendants in this case were required to establish that an arbitration agreement was knowingly, intelligently, and voluntarily entered into by the plaintiff in strict compliance with the malpractice arbitration act. Inasmuch as defendants failed to sustain this burden, the trial court’s order to compel arbitration must be reversed. We note that, under the malpractice arbitration act, a minor is bound by the consent of a parent or legal guardian and may not subsequently disaffirm any agreement entered into on the minor’s behalf. MCL 600.5046(2); MSA 27A.5046(2).

Plaintiff inartfully articulates a due process *695 challenge to the applicability of this provision once the age of majority has been reached. Inasmuch as this case may be decided on other grounds, we decline to consider the constitutional issue, and our decision is not intended to be a commentary on the merits of such a challenge. Lisee v Secretary of State, 388 Mich 32, 40-41; 199 NW2d 188 (1972); Port Huron & Detroit R Co v Dep’t of Treasury, 106 Mich App 413, 421; 308 NW2d 237 (1981). As to plaintiffs constitutional challenge to the composition of the panel of arbitrators, that controversy has been resolved in defendants’ favor in Morris v Metriyakool, 418 Mich 423; 344 NW2d 736 (1984).

Reversed.