Docket No. 56124.
Decided October 18, 1982. Leave to appeal applied for.
Charfoos, Christensen, Gilbert Archer, P.C. (by John N. Markwick and Adrienne G. Southgate), for plaintiffs.
McGraw Borchard, P.C. (by John W. McGraw), for Valley Obstetrics-Gynecology Clinic, P.C.
Kitch, Suhrheinrich, Smith, Saurbier Drutchas, P.C. (by M. Sean Fosmire), for Saginaw General Hospital.
Before: DANHOF, C.J., and R.B. BURNS and WAHLS, JJ.
Plaintiffs appeal as of right from the trial court's order dismissing the cause for submission to arbitration pursuant to GCR 1963, 116.1(2) and 769.2(1).
This medical malpractice action arises out of alleged negligence in the prenatal treatment and delivery of plaintiff Amanda McKinstry. On October 17, 1978, plaintiff Kathleen McKinstry was admitted to defendant Saginaw General Hospital by employees of defendant Valley Obstetrics-Gynecology Clinic, P.C., suffering from a complication of pregnancy known as preeclampsia. At that time, plaintiff signed two medical malpractice arbitration agreements; one in her name and the other in the name of Baby or Babies McKinstry. On October 21, 1978, Kathleen McKinstry gave birth to Amanda McKinstry, who, during birth, suffered a shoulder and arm injury known as Erb's palsy.
Based on the existence of a valid arbitration agreement pursuant to the medical malpractice arbitration act (MMAA), MCL 600.5040 et seq.; MSA 27A.5040 et seq., the trial court dismissed plaintiffs' lawsuit and entered an order for submission to arbitration.
Plaintiffs appeal as of right contending, inter alia, that the MMAA is unconstitutional because (1) plaintiffs' due process rights are violated because one member of the arbitration panel must be a physician or hospital administrator, and (2) plaintiffs are denied their constitutional right to trial by jury in the absence of a knowing and voluntary waiver.
Const 1963, art 1, § 14.
There is considerable disagreement within this Court concerning whether the act is constitutionally defective on the grounds asserted by plaintiffs in this appeal. See Christman v Sisters of Mercy Health Corp, 118 Mich. App. 719; 325 N.W.2d 801 (1982), and cases cited therein. We agree with the position of Judge BRONSON, in his dissent in Morris v Metriyakool, 107 Mich. App. 110; 309 N.W.2d 910 (1981), lv gtd 412 Mich. 884 (1981), that the agreement's failure to advise the patient of the arbitration panel's statutorily mandated composition violates the patient's due process rights.
Judge BRONSON'S position was followed in Strong v Oakwood Hospital Corp, 118 Mich. App. 395; 325 N.W.2d 435 (1982), and in Jackson v Detroit Memorial Hospital, 110 Mich. App. 202; 312 N.W.2d 212 (1981), lv gtd 412 Mich. 885 (1981), and a similar conclusion was reached by Judge KAUFMAN in Murray v Wilner, 118 Mich. App. 352; 325 N.W.2d 422 (1982).
Judge BRONSON concluded that the requirement that a member of the tribunal deciding the merits of a patient's malpractice claim be a physician or hospital administrator creates an unconstitutionally high risk of bias against the plaintiff-patient. This risk of bias is primarily due to (1) a direct pecuniary interest of the health care professional-member because of the relation between malpractice awards and malpractice insurance premiums; and (2) the prevailing anti-plaintiff attitude among large numbers of health care professionals. Morris, supra, pp 123-125, 128. See also Murray v Wilner, 118 Mich. App. 352; 325 N.W.2d 422 (1982), where the factors creating a risk of bias were further discussed by Judge KAUFMAN.
Although recognizing that the due process right to a fair and impartial tribunal may, like other constitutional rights, be waived, Judge BRONSON concluded the agreement's failure to advise the patient of the panel's composition precluded finding an "intentional relinquishment or abandonment of a known right":
"[A]s the state-fostered arbitration system is currently structured it is inherently unlikely that any individual who agrees to arbitrate will understand the due process implications of this decision. The portion of the statute relating to the composition of the arbitration panels violates due process of law by forcing the litigant to submit his or her claim to a tribunal which is composed in such a way that a high probability exists that said tribunal will be biased against the claimant without mandating the use of an arbitration form explicitly detailing the nature of the panel's makeup." Morris, p 134. (Footnote omitted.)
We find without merit, however, plaintiffs' claim that because the agreement fails to provide a more detailed statement of the procedures used in arbitration pursuant to the MMAA, and an explanation of how they differ from those of a trial, there can be no knowing, intelligent and voluntary waiver of a patient's constitutional right to trial. Although plaintiffs' argument is consistent with positions recently espoused by members of this Court, we agree with the majority in Brown v Siang, 107 Mich. App. 91; 309 N.W.2d 575 (1981), and Cushman v Frankel, 111 Mich. App. 604; 314 N.W.2d 705 (1981), that a more detailed statement is unnecessary for a valid waiver. See also Horn v Cooke, 118 Mich. App. 740; 325 N.W.2d 558 (1982).
The agreement specifically informs the patient of the right to trial by judge or jury and that arbitration is a substitute for trial.
In signing the agreement plaintiff Kathleen McKinstry expressly certified that she did "fully understand" the contents of the agreement. In the event of coercion or fraud in the execution of a particular arbitration agreement, the agreement, like any contract, is void or at least voidable. Horn v Cooke, supra; Brown v Siang, supra.
In light of our conclusion that the MMAA is unconstitutional because of the composition of the panel and the agreement's failure to inform the patient of the panel's makeup, we need not address other issues raised by plaintiffs on appeal.
The trial court's order dismissing the cause for submission to arbitration is reversed, and the matter is remanded for trial.
R.B. BURNS, J., concurred.
I agree with the opinion of the majority insofar as it holds that plaintiffs' waiver was not rendered ineffective because the agreement fails to provide a more detailed statement of the procedures used in arbitration. However, I would follow Brown v Siang, 107 Mich. App. 91; 309 N.W.2d 575 (1981), and Morris v Metriyakool, 107 Mich. App. 110; 309 N.W.2d 910 (1981), lv gtd 412 Mich. 884 (1981), and rule that the medical malpractice arbitration act does not violate plaintiffs' right to a hearing before a fair and impartial tribunal. I would affirm on this issue.