Brown v. Considine

• Decision Date: 06 August 1981
• Docket Number: Docket No. 45744
• Citation: 108 Mich.App. 504,310 N.W.2d 441
• Parties: Bernice BROWN and William Brown, Plaintiffs-Appellants, v. Basil CONSIDINE, Jr., M.D., and Harper-Grace Hospitals, Harper HospitalDivision, Defendants-Appellees. 108 Mich.App. 504, 310 N.W.2d 441
• Court: Court of Appeal of Michigan — District of US

Page 441

310 N.W.2d 441

Bernice BROWN and William Brown, Plaintiffs-Appellants, v. Basil CONSIDINE, Jr., M.D., and Harper-Grace Hospitals Harper HospitalDivision, Defendants-Appellees.

Docket No. 45744.

108 Mich.App. 504, 310 N.W.2d 441

Court of Appeals of Michigan.

Aug. 6, 1981.

Released for Publication Sept. 28, 1981.

[108 MICHAPP 505] Richard Ashare, Detroit, for plaintiffs-appellants.

Raymond W. Morganti, Detroit, for Basil Considine, Jr., M.D.

Donald A. Ducastel, Detroit, for Harper-Grace Hospitals.

Before BRONSON, P. J., and J. H. GILLIS and CYNAR, JJ.

PER CURIAM.

On July 18, 1978, plaintiffs filed a complaint against defendants in the Wayne County Circuit Court alleging malpractice arising in the course of outpatient radiation therapy treatments received by plaintiff, Bernice Brown. Defendants filed a motion for accelerated judgment on the basis that Mrs. Brown had executed an agreement to arbitrate in accordance with Michigan's Medical Malpractice Arbitration Act, M.C.L. § 600.5040 et seq.; M.S.A. § 27A.5040 et seq. The lower [108 MICHAPP 506] court held that the malpractice arbitration statute was constitutional and the contract recognized therein did not constitute a contract of adhesion. Consequently, on June 1, 1979, the court entered an order granting defendants' motion for accelerated judgment. From this order, plaintiffs appeal as of right.

As concerns the contract of adhesion claim, all members of this panel have previously held that an arbitration agreement is not invalid on this basis. As to the constitutional claim, two of us have concluded that the statute presents no constitutional problems while Judge Bronson is of the contrary opinion. Judge Gillis's views on these problems are set forth in Brown v. Siang, 107 Mich.App. ---, 309 N.W.2d 575 (1981), while Judges Cynar and Bronson have expressed their positions in their respective opinions in Morris v. Metriyakool, 107 Mich.App. ---, 309 N.W.2d 910 (1981). Since these are the only issues raised in respect to the hospital, the lower court's order granting accelerated judgment in its favor is affirmed.

As to the individual doctor, another claim of error is asserted. The arbitration agreement executed by Mrs. Brown provided in pertinent part:

"I understand that this hospital and I by signing this document agree to arbitrate any claims or disputes (except for disputes over charges for services rendered) which may arise in the future out of or in connection with the health care rendered to me by this hospital, its employees and those of its independent staff doctors and consultants who have agreed to arbitrate."

In this case, Mrs. Brown signed the arbitration agreement on June 2, 1976. However, it was not until December 22, 1976, that Dr. Considine signed a participation agreement with the hospital agreeing[108 MICHAPP 507] to arbitrate claims of medical malpractice. Plaintiffs contend that, if the arbitration agreement is valid, it nonetheless does not cover the action instituted against Dr. Considine. They argue that since Considine had not agreed to arbitrate as of June 2, 1976, Mrs. Brown's contract with the hospital extends no benefit to him.

Preliminarily, we note that this issue was not raised in the lower court. As a general rule, the appellate courts of this state will not consider an issue raised for the first time on appeal. However, this rule is not inflexible and, where consideration of a claim not previously raised is necessary to a proper determination of the case, the general principle will not be applied. Dation v. Ford Motor Co., 314 Mich. 152, 160-161, 22 N.W.2d 252 (1946); Felcoskie v. Lakey Foundry Corp., 382 Mich. 438, 442, 170 N.W.2d 129 (1969). In the case sub judice, the scope of the arbitration agreement must be addressed to properly and fully resolve this matter. Furthermore, the issue does not require an analysis of facts not of record so that the factual posture of this case presents no impediment to our reaching the problem.

It is basic to the law of contracts that no contract can arise except on the expressed mutual assent of the parties. Woods v. Ayres, 39 Mich. 345, 351 (1878). A contract is made when both parties have executed or accepted it, and not before. Holder v. Aultman, Miller & Co., 169 U.S. 81, 89, 18 S.Ct. 269, 272, 42 L.Ed. 669, 672 (1898). As stated in 17 Am.Jur.2d, Contracts, § 15, p. 353:

"Everyone has a right to select and determine with whom he will contract, and cannot have another person thrust on him without his consent. The rule that there must be a meeting of the minds to form a contract involves a common understanding of the identities of [108 MICHAPP 508] the parties. If one of the supposed parties is wanting, there is an absence of one of the formal constituents of a legal transaction, and there is no contract." (Footnotes omitted.)

There is no doubt that the agreement in question covers the hospital. The agreement specifically provides for arbitration between "this hospital and I". In respect to Dr. Considine, however, the agreement is ambiguous at best. We must determine whether the phrase "who have agreed to arbitrate" includes independent physicians who agreed to arbitrate only after the contract with the hospital was entered into and following the alleged acts of malpractice. Where a contract is prepared on behalf of one of the parties, any ambiguity therein will be strictly construed against that party. Keller v. Paulos Land Co., 381 Mich. 355, 362, 161 N.W.2d 569 (1968). In the instant case, plaintiffs had nothing to do with the preparation of the arbitration agreement with the hospital.

We agree with plaintiffs that under the contract as written, Dr. Considine is not within the scope of the agreement. Taken literally, the use...