Edwards v. St Mary's Hospital

120 Mich. App. 1 (1982) 327 N.W.2d 377

EDWARDS
v.
ST MARY'S HOSPITAL

Docket No. 50150.

Michigan Court of Appeals.

Decided October 5, 1982.

Charfoos, Christensen, Gilbert & Archer, P.C. (by John G. Konkel), for plaintiff.

Kitch, Suhrheinrich, Smith, Saurbier & Drutchas, P.C. (by M. Sean Fosmire and Ronald E. Wagner), for St. Mary's Hospital.

Baxter & Hammond (by Robert N. Hammond and Elizabeth F. Rupprecht), for Lynn S. Hedeman, M.D.

Cholette, Perkins & Buchanan (by Kenneth L. Block), for Edward C. Thompson, M.D., and others.

Before: R.B. BURNS, P.J., and BASHARA and M.R. KNOBLOCK,^[*] JJ.

M.R. KNOBLOCK, J.

This is an appeal, by leave granted, from an order of the trial court removing this action to arbitration. The following facts are taken from plaintiff's complaint and from the lower court records.

On February 27, 1978, plaintiff's decedent, Christine Edwards, was admitted as an inpatient in the defendant St. Mary's Hospital for the purpose of undergoing surgery to remove a pituitary tumor. Prior to surgery Mrs. Edwards executed an arbitration agreement with the hospital. On February 28, 1978, the surgical procedure was performed by defendant Dr. Hedeman, with defendant Dr. Thompson serving as anesthesiologist. Plaintiff claims that, though Mrs. Edwards' chart indicated she was allergic to penicillin, the chart was not consulted and she was intravenously administered a dose of ampicillin. As a result, shortly thereafter, she suffered a cardiovascular collapse and fell into a coma.

In April, 1978, while Mrs. Edwards remained in a comatose condition, her husband, the plaintiff in this action, mailed a letter signed by him to defendant hospital purportedly revoking the arbitration agreement. Mrs. Edwards remained as a patient in St. Mary's Hospital until May 3, 1978. She died on August 4, 1978, without regaining consciousness.

On October 24, 1978, plaintiff Willie C. Edwards was appointed administrator of the estate of his deceased wife by probate court order, and on April 23, 1979, commenced this suit alleging professional negligence. Defendants moved for an order to proceed to arbitration asserting the attempt to revoke the arbitration agreement was ineffective since plaintiff was not his wife's "legal representative" as that term is used in the medical malpractice arbitration act, MCL 600.5040 et seq.; MSA 27A.5040 et seq., and, therefore, the revocation was ineffective. Plaintiff appeals from the trial court's order granting defendant's motion.

Plaintiff raises several issues on appeal but does not challenge the constitutionality of the medical malpractice arbitration act. Though this issue was not raised, since we find it dispositive of this appeal, we think it proper to consider it. See Dearborn v Bacila, 353 Mich 99; 90 NW2d 863 (1958); Vermeylen v Knight Investment Corp, 73 Mich App 632; 252 NW2d 574 (1977); People v Noel, 88 Mich App 752; 279 NW2d 305 (1979).

There is a difference of opinion reflected in the decisions of the Court of Appeals as to the constitutionality of the medical malpractice arbitration act with one unanimous panel upholding its constitutionality, Brown v Siang, 107 Mich App 91; 309 NW2d 575 (1981), and one unanimous panel finding it unconstitutional, Jackson v Detroit Memorial Hospital, 110 Mich App 202; 312 NW2d 212 (1981), lv gtd 412 Mich 885 (1981). Divided panels have held in accord with Brown, supra, in four cases; Morris v Metriyakool, 107 Mich App 110; 309 NW2d 910 (1981), lv gtd 412 Mich 884 (1981), Williams v O'Connor, 108 Mich App 613; 310 NW2d 825 (1981), Cushman v Frankel, 111 Mich App 604; 314 NW2d 705 (1981), and Rome v Sinai Hospital of Detroit, 112 Mich App 387; 316 NW2d 428 (1982); and one in accord with Jackson, supra; Piskorski v Art Centre Hospital, 110 Mich App 22; 312 NW2d 160 (1981). The issue is currently pending before the Supreme Court, leave having been granted in Morris, supra, and Jackson, supra. We are of the opinion that the reasoning set forth in Jackson, relying on the dissenting opinion in Morris, represents the better position, and we adopt that view.

Reversed and remanded for trial.

R.B. BURNS, P.J., concurred.

BASHARA, J. (dissenting).

I respectfully dissent from the majority's opinion for the reasons set forth in my opinion in Brown v Siang, 107 Mich App 91; 309 NW2d 575 (1981).

I would affirm.

NOTES

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