Michigan Court of AppealsDec 1, 1981
111 Mich. App. 604 (Mich. Ct. App. 1981)
111 Mich. App. 604314 N.W.2d 705

Docket No. 47422.

Decided December 1, 1981. Leave to appeal applied for.

Lopatin, Miller, Bindes, Freedman, Bluestone, Erlich Rosen (by Steven G. Silverman), for plaintiff.

Schureman, Frakes, Glass Wulfmeier (by Edward C. Reynolds, Jr.), for defendants Frankel and Mandeberg.

Kitch, Suhrheinrich, Smith, Saurbier Drutchas, P.C. (by Donald A. Ducastel), for Providence Hospital.

Before: BRONSON, P.J., and M.F. CAVANAGH and N.J. KAUFMAN, JJ.


This case involves a constitutional challenge to the Medical Malpractice Arbitration Act, MCL 600.5040 et seq.; MSA 27A.5040 et seq. (the act).

On July 9, 1976, plaintiff's decedent, Joan Cushman, was admitted to defendant Providence Hospital. Mrs. Cushman signed an arbitration agreement form that day prior to receiving treatment from defendant Drs. Frankel and Mandeberg. The agreement was not revoked in writing within the 60-day period provided by the terms of the arbitration agreement and by the act. MCL 600.5041(3) and (5), 600.5042(3), (4); MSA 27A.5041(3) and (5), 27A.5042(3), (4).

Mrs. Cushman died after her discharge from the hospital. On July 5, 1978, plaintiff filed suit as the administrator of Mrs. Cushman's estate in Wayne County Circuit Court, alleging medical negligence against defendants. Defendants brought a motion for accelerated judgment, contending that the court lacked jurisdiction to hear the case because of plaintiff's failure to revoke the arbitration agreement. The trial court granted defendants' motions and plaintiff now appeals as of right.

On appeal plaintiff raises three objections to the arbitration scheme. First, plaintiff argues that the act violates his right to a hearing before a fair and impartial tribunal since any arbitration panel will include a physician or hospital administrator. Next, plaintiff contends that the arbitration agreement constituted an unenforceable contract of adhesion. Finally, plaintiff contends that the circumstances under which arbitration agreements are signed are not conducive to a knowing waiver of the right to court access.

Initially, we reject plaintiff's claim that the arbitration agreement is a contract of adhesion. The essence of an adhesion contract is that it is offered on a take it or leave it basis to a consumer who has no realistic bargaining strength and who cannot obtain the desired services or goods without consenting to the contract terms. Wheeler v St Joseph Hospital, 63 Cal.App.3d 345, 356; 133 Cal.Rptr. 775 (1976). Here, plaintiff's decedent was able to receive health care without foregoing the choice between arbitration or court trial. The arbitration act specifically requires these agreements to state that execution is not a prerequisite to treatment. MCL 600.5041(2), 600.5042(2); MSA 27A.5041(2), 27A.5042(2). Moreover, arbitration agreements may be revoked within 60 days of execution, or with regard to hospitals, within 60 days of discharge.

Likewise, we find without merit plaintiff's argument that the signing of the agreement constituted an unknowing waiver of constitutional rights. When plaintiff's decedent entered into the arbitration agreement, the only constitutional right waived was that to trial of any dispute before a court. The agreement provided in pertinent part:

Const 1963, art 1, § 14.

"I understand that Michigan Law gives me the choice of trial by judge or jury or of arbitration. I understand that arbitration is a procedure by which a panel that is either mutually agreed upon or appointed decides the dispute rather than a judge or jury. I freely choose arbitration, and I agree that a judgment of any circuit court may be rendered upon any award or determination made pursuant to this agreement.

* * *

"I certify that I have read this agreement or have had it read to me and that I fully understand its content and execute this agreement of my own free will. I have received a complete copy of the booklet which explains this agreement."

Since we can only presume that plaintiff's decedent read the terms of the agreement before signing it, we conclude that she knowingly waived the right to court access as delineated above.

We find more troubling plaintiff's contention that the required composition of the arbitration panel violates due process. This issue has already produced a split of opinion among members of this Court. Compare Brown v Siang, 107 Mich. App. 91; 309 N.W.2d 575 (1981), and the majority opinion in Morris v Metriyakool, 107 Mich. App. 110; 309 N.W.2d 910 (1981), with Morris v Metriyakool, 107 Mich. App. 110, 121-140; 309 N.W.2d 910 (1981) (BRONSON, J., dissenting). We conclude, for the reasons expressed by Judges BASHARA and CYNAR in Brown, supra, and Morris, supra, that due process is not violated by the act's requirement that a doctor or hospital administrator sit on arbitration panels. Nonetheless, we add the following observations.

In Crampton v Dep't of State, 395 Mich. 347; 235 N.W.2d 352 (1975), the Supreme Court held that the plaintiff, who had been arrested for drunk driving, was denied the due process right to a hearing before a fair and impartial tribunal when his driver's license was suspended by a two-member panel consisting of a representative of the Secretary of State and a police officer. The Court concluded that the risk that police officers "will be unable to step out of their roles as full-time law enforcement officials and into the role of unbiased decisionmaker in a law enforcement dispute between a citizen and a police officer presents a probability of unfairness too high to be constitutionally tolerable". Id., 357-358.

Likewise, in Glass v State Highway Comm'r, 370 Mich. 482; 122 N.W.2d 651 (1963), the Supreme Court held that a deputy highway commissioner could not fairly conduct a hearing and decide on the necessity for condemnation of a parcel for highway purposes. The Court noted that the deputy commissioner was an interested person inasmuch as his own job security could depend on whether he carried into effect the highway planning decisions of his superior.

We believe that the danger of biased decision-making is significantly lower in the instant situation. The arbitration statute itself provides for procedures to reduce the possibility of bias among panel members. It instructs the arbitration association to conduct an initial screening of potential panel candidates for possible bias. Moreover, in each particular case a panel candidate is required to complete, under oath, a current personal disclosure statement. The parties to arbitration are to receive any information indicative of partiality. MCL 600.5045(1); MSA 27A.5045(1). The parties are also permitted to submit reasonable voir dire questions to an arbitration candidate within 10 days of receipt of the candidate's name. MCL 600.5045(2); MSA 27A.5045(2). The parties may strike from the list of potential candidates any person found unacceptable. MCL 600.5044(3); MSA 27A.5044(3). Although the arbitration association may ultimately impose a panel member upon the parties when a mutual agreement cannot be reached, panel members thus appointed are nonetheless subject to challenge for cause. MCL 600.5044(5); MSA 27A.5044(5).

We believe that these procedures provide sufficient protection against panel bias. To conclude otherwise would imply an inherent prejudice within the medical profession so deeply held as to preclude members from ever standing in judgment of their colleagues. This we cannot accept. The very licensing of members of the medical profession is governed by the Medical Practice Board, 10 of the 11 members of which must be doctors. MCL 338.1803; MSA 14.542(3). Corollary to the board's licensing function is its role in policing the profession on behalf of the public, requiring it to act on license revocations and suspensions. MCL 338.1811; MSA 14.542(11). Such self-regulation is neither unusual nor unacceptable. In the case of virtually all licensed professions and occupations the public's interest in competent and professional conduct is protected primarily by members of the groups themselves. Further, changes within the medical profession itself preclude us from concluding that unbiased arbitrators could not be found within its ranks. While we would certainly not advocate a system where decisions over malpractice allegations were relegated to arbitration panels or juries composed entirely of medical practitioners, we cannot hold that the safeguards of the malpractice arbitration scheme are inadequate to ensure fair and impartial arbitration panels.

Many members of the bar will recall a time when the medical profession was so close-knit that expert medical witnesses could hardly be found to testify for plaintiffs in malpractice cases. Today, one need only peruse the legal periodicals to find doctors advertising their availability for consultation in such cases.


BRONSON, P.J. (dissenting).

I dissent for the reasons stated in my partial concurrence in Morris v Metriyakool, 107 Mich. App. 110; 309 N.W.2d 910 (1981), Judge T.M. BURNS' dissenting opinion in Williams v O'Connor, 108 Mich. App. 613; 310 N.W.2d 825 (1981), and the majority opinions in Jackson v Detroit Memorial Hospital, 110 Mich. App. 202; 312 N.W.2d 212 (1981), and Piskorski v Art Centre Hospital, 110 Mich. App. 22; 312 N.W.2d 160 (1981).

I make the following remarks concerning the majority's analogy to self-regulation in the professions as a justification for upholding the arbitration system here. I believe this analogy is faulty. Internal professional regulatory bodies do not make decisions which adversely affect an aggrieved individual's ability to pursue civil remedies. Disciplinary actions and actions for damages on account of alleged malpractice serve different functions. The two should not be confused and neither adjudicative system should be cited as a reason for upholding some aspect of the other type of system.

I also note that the majority is apparently applying an incorrect legal standard in determining whether the arbitration panels pose due process problems. The question is not whether it is impossible to find unbiased arbitrators within the pool of potential arbitrators, but whether a tribunal is composed in such a way that too great a risk exists that one or more of the judges may have a personal interest in the outcome of the proceedings and, consequently, be biased. Ward v Village of Monroeville, 409 U.S. 57, 59-61; 93 S Ct 80; 34 L Ed 2d 267 (1972), Crampton v Dep't of State, 395 Mich. 347, 355-356; 235 N.W.2d 352 (1975).

It is of course true that today plaintiffs' attorneys can find medical practitioners willing to testify against members of their profession. However, to the extent that the majority opinion implies any sort of parity in the ability of the plaintiffs' bar to obtain medical experts, I vehemently disagree. As a judge on this Court for some 13 years, it has been my observation from reviewing the records in many medical malpractice cases that the plaintiffs' bar, with occasional exceptions, must rely on a small group of medical doctors who are used over and over again, while the defense bar faces no such restrictions. Consequently, the plaintiffs' experts are more susceptible to attacks on their neutrality than defense experts. The defense bar knows which doctors are willing to testify for plaintiffs, and I have no doubt that their faces will not be seen on arbitration panels.

I would reverse.