Michigan Court of AppealsNov 17, 1982
121 Mich. App. 364 (Mich. Ct. App. 1982)
121 Mich. App. 364328 N.W.2d 633

Docket No. 55892.

Decided November 17, 1982. Leave to appeal applied for.

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

Kitch, Suhrheinrich, Smith, Saurbier Drutchas, P.C. (by Donald A. Ducastel and Stephen M. Kelley), for defendant.

Before: DANHOF, C.J., and BRONSON and J.R. ERNST, JJ.

Circuit judge, sitting on the Court of Appeals by assignment.


Defendant Hutzel Hospital appeals, by leave granted, from an order denying its motion for an accelerated judgment. In denying the motion, the trial judge held that the medical malpractice arbitration act, MCL 600.5040 et seq.; MSA 27A.5040 et seq., is unconstitutional. I am not convinced that the act is unconstitutional and, therefore, conclude that the trial court's decision must be reversed. At the same time, concern for safeguarding the rights of individuals who seek medical treatment compels me to comment regarding the proper procedure for analyzing a claim that a person has waived his right to bring an action for medical malpractice in a judicial forum. I am in accord with the result reached by this Court in Moore v Fragatos, 116 Mich. App. 179; 321 N.W.2d 781 (1982), and adopt the guidelines as expressed in part IV of that opinion.

Therefore, the decision of the trial court is reversed and the matter is remanded so that a hearing may be conducted at which defendant Hutzel Hospital has the burden of proving by clear and convincing evidence that plaintiff's decedent was provided with (and understood) the information required by Moore, supra, pp 202-203.

Reversed and remanded.

Defendant Hutzel Hospital appeals, by leave granted, from an order denying its motion for an accelerated judgment.

On August 29, 1979, plaintiff commenced this action. Her complaint alleged various acts of medical malpractice committed by defendants Dr. James Pierce and Hutzel Hospital during plaintiff's decedent's hospital stay from August 14 to October 3, 1977. At the time he was admitted to the hospital, plaintiff's decedent executed a medical malpractice arbitration agreement.

Hutzel Hospital moved for an accelerated judgment, under GCR 1963, 116.1(2), asserting that the circuit court lacked subject matter jurisdiction by reason of the arbitration agreement. Plaintiff challenged the validity of the arbitration agreement on constitutional and other grounds.

On May 22, 1980, the trial court issued an opinion finding that the medical malpractice arbitration act, MCL 600.5040 et seq.; MSA 27A.5040 et seq., violated plaintiff's constitutional right to have a hearing before a fair and impartial tribunal. An order denying Hutzel Hospital's motion was entered on July 14, 1980. On December 4, 1980, the trial court entered an order denying a motion for reconsideration. We granted Hutzel Hospital's application for leave to appeal.

There is a split of authority on this Court as to whether the medical malpractice arbitration act violates the right to a hearing before a fair and impartial tribunal in that it requires that one of the three arbitration panel members be a physician or hospital administrator. Compare Brown v Siang, 107 Mich. App. 91; 309 N.W.2d 575 (1981); Morris v Metriyakool, 107 Mich. App. 110; 309 N.W.2d 910 (1981), lv gtd 412 Mich. 884 (1981); Williams v O'Connor, 108 Mich. App. 613; 310 N.W.2d 825 (1981); Cushman v Frankel, 111 Mich. App. 604; 314 N.W.2d 705 (1981); Rome v Sinai Hospital of Detroit, 112 Mich. App. 387; 316 N.W.2d 428 (1982), with Jackson v Detroit Memorial Hospital, 110 Mich. App. 202; 312 N.W.2d 212 (1981), lv gtd 412 Mich. 885 (1981); Piskorski v Art Centre Hospital, 110 Mich. App. 22; 312 N.W.2d 160 (1981).

I am persuaded that Brown, supra, and those decisions finding that the medical malpractice arbitration act does not violate a malpractice plaintiff's due process right to a hearing before a fair and impartial tribunal have reached the correct result. Therefore, I concur with Judge ERNST that reversal is required.

Plaintiff also contends that by signing the arbitration agreement her decedent did not knowingly, intelligently and voluntarily waive his right to trial before a court of law. In support of her contention, plaintiff relies on Moore v Fragatos, 116 Mich. App. 179; 321 N.W.2d 781 (1982). In Moore, supra, a panel of this Court ruled that where a defendant in a malpractice action moves for an accelerated judgment on the ground that plaintiff has executed an arbitration agreement, the burden is on defendant to prove by clear and convincing evidence that plaintiff knowingly, intelligently and voluntarily waived his right to trial before a court of law.

While I agree with the Moore Court's premise that the right of access to the courts is an important constitutional right, I do not agree that a civil litigant's decision to forego that right is subject to the same exacting scrutiny as is the decision of a criminal defendant who waives a constitutional right. Unlike a criminal defendant's decision to give up the right to counsel, or other similar rights, a person's decision to agree to arbitration does not involve the complete abandonment of a constitutional right. See Arkoosh v Dean Witter Co, Inc, 415 F. Supp. 535, 544 (D Neb, 1976), aff'd 571 F.2d 437 (CA 8, 1978). Furthermore, a decision to arbitrate does not involve the sort of procedural due process considerations presented in Fuentes v Shevin, 407 U.S. 67; 92 S Ct 1983; 32 L Ed 2d 556 (1972). On the contrary, it merely involves an agreement to have disputes resolved by a simpler, less costly process. See Scherk v Alberto-Culver Co, 417 U.S. 506, 519; 94 S Ct 2449; 41 L Ed 2d 270 (1974). It has long been the policy of courts of this state to encourage arbitration. Detroit v A W Kutsche Co, 309 Mich. 700; 16 N.W.2d 128 (1944). Since we have already held that the makeup of the arbitration panel satisfies due process requirements that the tribunal be fair and impartial, I cannot agree with Judge ERNST that we should adopt the Moore Court's conclusion that it is a defendant's burden to prove the validity of an arbitration agreement which a plaintiff's decedent has admittedly signed.

It should be noted that at least one other panel of this Court has declined to adopt the approach taken by Moore, supra. See Horn v Cooke, 118 Mich. App. 740; 325 N.W.2d 558 (1982). But see Judge CYNAR'S opinion in Gale v Providence Hospital, 118 Mich. App. 405; 325 N.W.2d 439 (1982).

It is well-established that where a person executes a written instrument he is chargeable with knowledge of the contents of such instrument. Cleaver v The Traders' Ins Co, 65 Mich. 527; 32 N.W. 660 (1887). The rule was established for more than mere procedural convenience. It is based upon sound experience and long-standing judicial recognition that in the absence of such a rule the worth of written instruments would be almost nonexistant. The rule is intended to insure greater stability with respect to such instruments. Sponseller v Kimball, 246 Mich. 255, 260; 224 N.W. 359 (1929). The Legislature has provided various safeguards in the medical malpractice arbitration act to insure that a person signing such an agreement has every opportunity to understand the rights and responsibilities created by the agreement. MCL 600.5041; MSA 27A.5041. Of particular note is the provision concerning the distribution of an information brochure. MCL 600.5041(6); MSA 27A.5041(6). Much of the information which the Moore Court would require to be disclosed to the patient is contained in the brochure. I perceive no cogent reason to require that a defendant make a further showing that it has provided that information to a plaintiff.

The act provides that where the disclosure provisions of the arbitration agreement comply with the requirements of § 5041, the agreement "shall be presumed valid". MCL 600.5041(7); MSA 27A.5041(7). In my view, this provision evinces a clear legislative intent to place the burden upon the party challenging the validity of the agreement to demonstrate that the agreement is invalid. The Moore Court's holding that the burden is on the defendant to prove the validity of the agreement places an impossible burden on the defendant and frustrates the entire legislative scheme in enacting the statute. Since I find no constitutional impediment which would preclude the Legislature from placing the burden of proof on the party who seeks to avoid the agreement, I would conclude that Moore, supra, was wrongly decided.

In the present case, plaintiff has not alleged that the requirements of § 5041 were not complied with, nor does she contend that the agreement to arbitrate was induced by coercion or as the result of misrepresentations made by defendants. On the contrary, plaintiff has made no attempt to show that at the time her decedent signed the agreement he did not understand the consequences of his actions. Under these circumstances, I would find that plaintiff's claim is without merit.

Finally, for the reasons stated in Brown v Siang, supra, I would also reject plaintiff's contention that the agreement is an unenforceable contract of adhesion.

BRONSON, J. (concurring in part and dissenting in part).

I continue to adhere to the position I stated in dissent in Morris v Metriyakool, 107 Mich. App. 110, 121; 309 N.W.2d 910 (1981), lv gtd 412 Mich. 884 (1981). I agree with Judge ERNST on the subject of the proper disposition of a motion for an accelerated judgment based on an agreement to arbitrate a medical malpractice claim where the medical malpractice arbitration act is held constitutional. I believe the opinion in Moore v Fragatos, 116 Mich. App. 179; 321 N.W.2d 781 (1982), sets forth an adequate procedure for determining if a waiver is knowing, intelligent, and voluntary: