Jackson v. Detroit Memorial Hospital , 110 Mich. App. 202 ( 1981 )

110 Mich. App. 202 (1981) 312 N.W.2d 212

JACKSON
v.
DETROIT MEMORIAL HOSPITAL.

Docket No. 54337.

Michigan Court of Appeals.

Decided October 7, 1981.

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

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

Before: T.M. BURNS, P.J., and BRONSON and R.H. PANNUCCI,^[*] JJ.

R.H. PANNUCCI, J.

On November 3, 1977, plaintiff underwent treatment by defendant Dr. Bloom, D.D.S., in defendant Detroit Memorial Hospital for a dental condition. It is undisputed that on that date plaintiff signed a standard medical arbitration agreement and did not thereafter revoke her consent to arbitrate.

Plaintiff subsequently instituted the present action, claiming that she was injured as a result of defendants' negligent treatment. The trial court on October 2, 1980, granted defendants' motion for accelerated judgment on the ground that, pursuant to the medical malpractice arbitration act, MCL 600.5040 et seq.; MSA 27A.5040 et seq., the court was without jurisdiction over the subject matter of the action due to plaintiff's execution of a valid agreement to arbitrate the dispute.

Plaintiff first contends that the medical malpractice arbitration act violates her due process right to a hearing before a fair and impartial tribunal by mandating that at least one member of the arbitration panel be a physician, preferably from the defendant's medical specialty, or, where a hospital is the sole defendant, a hospital administrator. US Const, Am XIV; Const 1963, art 1, § 17; MCL 600.5044(2); MSA 27A.5044(2).

We agree with Judge BRONSON'S dissent in Morris v Metriyakool, 107 Mich. App. 110; 309 NW2d 910 (1981), that:

"[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." (Footnote omitted.) Id., 134.

The statutorily prescribed composition of the arbitration panel creates a situation in which "the probability of actual bias on the part of the * * * decisionmaker is too high to be constitutionally tolerable". Crampton v Dep't of State, 395 Mich. 347, 356; 235 NW2d 352 (1975).

We conclude that the statute is unconstitutional and accordingly reverse and remand this case for trial.

An important factor in our determination of unconstitutionality is that, once the 60-day revocation period provided for by MCL 600.5041(3); MSA 27A.5041(3) and MCL 600.5042(3); MSA 27A.5042(3) has lapsed, the medical malpractice arbitration act provides no mechanism for relief from uninformed execution of an arbitration agreement, as by de novo review of an award to the circuit courts of this state. See MCL 600.5057; MSA 27A.5057.

Plaintiff also contends that the medical malpractice arbitration act is unconscionable and that the arbitration agreement represents a contract of adhesion. In Morris, Judge BRONSON states:

"I think offering the patient the opportunity to execute the arbitration agreement prior to admission or while in the hospital during treatment represents bad policy. However, policy-making is a legislative prerogative." Morris, supra, 137.

We concur with this analysis. However, outside of the fact that plaintiff was in the hospital, we cannot find that plaintiff's execution of the arbitration agreement was unknowingly or coercively made. Given a different factual setting, a patient's execution of an arbitration agreement could be unknowing or involuntary.

A contract of adhesion is a contract offered to consumers on standardized forms on a take it or leave it basis. Wheeler v St Joseph Hospital, 63 Cal App 3d 345; 133 Cal Rptr 775; 84 ALR3d 343 (1976). In Allen v Michigan Bell Telephone Co, 18 Mich. App. 632, 637; 171 NW2d 689 (1969), the Court found two pertinent inquiries in deciding whether a contract provision is unreasonable or unconscionable:

"(1) What is the relative bargaining power of the parties, their relative economic strength, the alternative sources of supply, in a word, what are their options?; (2) Is the challenged term substantively reasonable?"

Although there is disparity in bargaining power under the medical malpractice arbitration act, an agreement to arbitrate is not a condition of admission or treatment and may be revoked within 60 days after execution by notification in writing. As such, the arbitration agreement is not a contract of adhesion.

Reversed and remanded.

NOTES

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