Brown v. Siang

• Decision Date: 05 June 1981
• Docket Number: Docket No. 45249
• Citation: 309 N.W.2d 575,107 Mich.App. 91
• Parties: Virginia BROWN, Administratrix of the Estate of Dorothy Ross Brown, Deceased, Plaintiff-Appellant, v. Dr. Go Thiek SIANG, and Sinai Hospital, a corporation, jointly and severally, Defendants-Appellees. 107 Mich.App. 91, 309 N.W.2d 575
• Court: Court of Appeal of Michigan — District of US

Page 575

309 N.W.2d 575

Virginia BROWN, Administratrix of the Estate of Dorothy Ross Brown, Deceased, Plaintiff-Appellant, v. Dr. Go Thiek SIANG, and Sinai Hospital, a corporation jointly and severally, Defendants-Appellees.

Docket No. 45249.

107 Mich.App. 91, 309 N.W.2d 575

Court of Appeals of Michigan.

June 5, 1981.

Released for Publication Aug. 26, 1981.

[107 MICHAPP 95] Steven G. Silverman, Detroit, for plaintiff-appellant.

Richard R. Denardis, Detroit, for defendants-appellees.

Before CYNAR, P. J., and BASHARA and BEASLEY, JJ.

BASHARA, Judge.

Plaintiff filed suit against defendants alleging medical malpractice. The complaint stated that plaintiff's decedent, Dorothy Ross Brown, entered the defendant Sinai Hospital of Detroit (Sinai) on May 21, 1976. While the decedent was in Sinai, defendant Dr. Go Thiek Siang performed a liver biopsy on her, resulting in massive hemorrhaging. Purportedly due to defendants' negligence, she died on June 20, 1976.

Sinai filed a motion for accelerated judgment pursuant to GCR 1963, 116.1(2) and 769.1. The motion alleged, and was supported by way of affidavit, that plaintiff's deceased, upon entering the hospital, had signed an agreement to arbitrate all claims arising from the health care received during that admission. It was asserted that the arbitration agreement rendered the circuit court without jurisdiction to consider plaintiff's malpractice claim pursuant to the R. Hood-McNeely-Geake Malpractice Arbitration Act of 1975, M.C.L. § 600.5040 et seq.; M.S.A. § 27A.5040 et seq. (the Act). Plaintiff appeals the trial court's order granting accelerated judgment to Sinai and ordering the plaintiff to submit the dispute to arbitration. ¹

Plaintiff presents three issues of first impression [107 MICHAPP 96] to this Court. She claims the Act is unconstitutional on the following bases:

(1) The statute violates plaintiff's due process 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. ²

(2) Due to the circumstances surrounding all patients when they are asked to sign the arbitration agreement, ³ the right to judicial process is not [107 MICHAPP 97] knowingly waived, constituting a violation of due process of law; and

(3) The arbitration agreement is a contract of adhesion rendering it unenforceable.

We note that the question of the validity of the underlying agreement is essentially a judicial question. Kaleva-Norman-Dickson School District No. 6, Counties of Manistee, Lake & Mason v. Kaleva-Norman-Dickson School Teachers Ass'n, 393 Mich. 583, 227 N.W.2d 500 (1975). Therefore, defendant's contention that the trial court was without jurisdiction to consider the validity of the contract lacks merit. See Capman v. Harper Grace Hospital, 96 Mich.App. 510, 294 N.W.2d 205 (1980).

The burden of proving an alleged constitutional violation rests on the party asserting it. If the statute can be construed in a manner consistent with the constitution, the party alleging unconstitutionality has failed to meet that burden. Dearborn Twp. v. Dearborn Twp. Clerk, 334 Mich. 673, 55 N.W.2d 201 (1952); Naudzius v. Lahr, 253 Mich. 216, 234 N.W. 581 (1931); Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). We have carefully reviewed the record, briefs and legal authority and conclude that the Act is constitutional.

I. The Act

The statute was enacted in 1975 as a response to the "medical malpractice crisis", the high cost of health care due to the increased incidence of medical[107 MICHAPP 98] malpractice litigation. Comment, Michigan's Medical Malpractice Legislation Prognosis: Curable Defects, 55 U. D. Journal of Urban Law, 309-311 (1978). The Act describes the mandatory provisions of agreements to arbitrate disputes over services rendered by a health care provider, ⁴ §§ 5041, 5042, 5046(2). Neither the patient nor the health care provider is required by law to enter into an agreement to arbitrate disputes. The health care provider may not require a patient to enter into the agreement as a prerequisite to treatment, § 5041(2). However, where the agreement has been properly executed and not revoked by the patient within 60 days, binding arbitration is the only remedy available for settlement of malpractice disputes.

The Act details the procedure to be followed at an informal arbitration hearing, as well as the rules of discovery. §§ 5048-5052. For example, the parties may be represented by counsel, be heard, present evidence and cross-examine witnesses, § 5043(1)(a).

The three-member arbitration panel ⁵ is selected by the parties from lists compiled by the American Arbitration Association (association), § 5044(3). If the members cannot be selected by mutual agreement, the association makes the selection, subject to challenge for cause by either party, § 5044(5). A procedure is established for screening the arbitrators for bias, § 5045.

A majority of the panel may grant any relief [107 MICHAPP 99] deemed equitable, §§ 5054, 5056. The written opinion accompanying the award must contain findings on enumerated issues, §§ 5054-5056. Appeals from the arbitration award are governed by the general arbitration law and applicable court rules. ⁶

II. Composition of the Arbitration Panel

The panel is composed of one lawyer, one lay person and one health care provider. Plaintiff alleges that inclusion of one health care provider on the panel violates her due process right to an impartial tribunal. In support of this argument, the depositions of insurance experts were submitted to the trial court. In summary, the witnesses stated that an increase in the amount of money awarded in malpractice cases will be reflected in higher insurance premiums for all health care providers in the state. Plaintiff asserts, based upon this testimony, that a physician or hospital administrator who sits on the arbitration panel is necessarily biased due to the direct pecuniary interest he possesses in purchasing malpractice insurance.

Several circuit courts of this state have considered the issue, the majority of which have concluded that the plaintiffs failed to submit clear, plain proof of bias. Cf., Malek v. Jayakar (Wayne County, Civil Action No. 78-802-604-NM); ⁷ Yager v. Locke (Lenawee County, No. 79-07-627-NM); Lorenz v. Mendelsohn (Oakland County, No. 79-187-555-NM); Chaston v. Stubbs (Washtenaw County, No. 80-18656-NM); Pipper v. DiMusto (Macomb County, No. 76-8188-NM). But see, Taylor v. Detroit Bank & Trust Co (Macomb County, No. 77-1906-[107 MICHAPP 100] NM); Manuel v. Pierce (Wayne County, No. 79-929209-NM).

Plaintiff cites Crampton v. Dep't. of State, 395 Mich. 347, 235 N.W.2d 352 (1975), in support of her position. Plaintiff in Crampton challenged the constitutionality of a statute which established a license appeal board for review of driver license revocations. It was alleged that the board was biased since it was composed of a Lansing police officer and representatives of both the Attorney General and Secretary of State offices. The Court held that it is impermissible for the police and attorney general officials to act as adjudicators in law enforcement disputes because their very purpose is to arrest and prosecute law violators. The Court noted that "the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable". Id., 356, 235 N.W.2d 352.

Since the purpose of medicine is not to defend against malpractice claims, the relationship between the health care provider who is selected as arbitrator and the plaintiff bringing the claim is not analogous to the scenario of Crampton. However, the Crampton opinion is helpful in that it recognizes the situations in which the U. S. Supreme Court has found the probability of bias constitutionally intolerable. The risk may be present where the decision maker:

"(1) has a pecuniary interest in the outcome;

(2) 'has been the target of personal abuse or criticism from the party before him';

(3) is 'enmeshed in (other) matters involving petitioner * * * '; or

(4) might have prejudged the case because of prior participation as an accuser, investigator, fact finder or initial decisionmaker." Id., 351, 235 N.W.2d 352. (Footnotes omitted.)

[107 MICHAPP 101] Plaintiff bases her claim of bias on the allegation that the health care panel member has a pecuniary interest in the outcome of medical malpractice litigation. She relies heavily on Ward v. Village of Monroeville, 409 U.S. 57, 59-61, 93 S.Ct. 80, 82-83, 34 L.Ed.2d 267 (1972). In Ohio, mayors were permitted by statute to sit as judges in local ordinance violation trials. The evidence presented established that the defendant Village of Monroeville was substantially supported by fines imposed in the mayor's court. In holding the statute unconstitutional, the U. S. Supreme Court stated:

"(T)he test is whether the mayor's situation is one 'which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused * * *.' * * * Plainly that 'possible temptation' may also exist when the mayor's executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor's court. This, too, is a 'situation in which an official occupies two practically and seriously inconsistent positions, one partisan and the other judicial, (and) necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him.' " Id., 60, 93 S.Ct. at 83.

The statute under scrutiny in Ward and the Act are not comparable. The Act allows the parties to agree to waive the right to a jury trial and submit a civil dispute to binding arbitration. No criminal rights are involved. The parties select the panel...