Cushman v. Frankel

• Decision Date: 26 January 1982
• Docket Number: Docket No. 47422
• Citation: 314 N.W.2d 705,111 Mich.App. 604
• Parties: Lowell CUSHMAN, Administrator of the Estate of Joan Cushman, Deceased, Plaintiff-Appellant, v. Dr. Maurice FRANKEL and Dr. J. M. Mandeberg, M. D., and Providence Hospital, jointly and severally.
• Court: Court of Appeal of Michigan — District of US

Page 705

314 N.W.2d 705

111 Mich.App. 604

Lowell CUSHMAN, Administrator of the Estate of Joan Cushman, Deceased, Plaintiff-Appellant, v. Dr. Maurice FRANKEL and Dr. J. M. Mandeberg, M. D., and Providence Hospital, jointly and severally.

Docket No. 47422.

Court of Appeals of Michigan.

Submitted Feb. 5, 1981.

Decided Dec. 1, 1981.

Released for Publication Jan. 26, 1982.

Lopatin, Miller, Bindes, Freedman, Bluestone, Erlich & Rosen by Steven G. Silverman, Detroit, for plaintiff-appellant.

Schureman, Frakes, Glass & Wulfmeier by Edward C. Reynolds, Jr., Detroit, for Frankel and Mandeberg.

Kitch, Suhrheinrich, Smith, Saurbier & Drutchas, P. C. by Donald A. Ducastel, Detroit, for Providence Hospital.

Before BRONSON, P. J., and CAVANAGH and KAUFMAN, JJ.

PER CURIAM.

This case involves a constitutional challenge to the Medical Malpractice Arbitration Act, M.C.L. § 600.5040 et seq.; M.S.A. § 27A.5040 et seq. (the Act).

On July 9, 1976, plaintiff's decedent, Joan Cushman, was admitted to defendant Providence Hospital. Mrs. Cushman signed an arbitration agreement form that day prior to receiving treatment from defendant Drs. Frankel and Mandeberg. The agreement was not revoked in writing within the 60-day period provided by the terms of the arbitration agreement and by the Act. M.C.L. §§ 600.5041(3) and (5), 600.5042(3), (4); M.S.A. §§ 27A.5041(3) and (5), 27A.5042(3), (4).

Mrs. Cushman died after her discharge from the hospital. On July 5, 1978, plaintiff filed suit as the administrator of Mrs. Cushman's estate in Wayne County Circuit Court, alleging medical negligence against defendants. Defendants brought a motion for accelerated judgment, contending that the court lacked jurisdiction to hear the case because of plaintiff's failure to revoke the arbitration agreement. The trial court granted defendants' motions and plaintiff now appeals as of right.

On appeal plaintiff raises three objections to the arbitration scheme. First, plaintiff argues that the Act violates his right to a hearing before a fair and impartial tribunal since any arbitration panel will include a physician or hospital administrator. Next, plaintiff contends that the arbitration agreement constituted an unenforceable contract of adhesion. Finally, plaintiff contends that the circumstances under which arbitration agreements are signed are not conducive to a knowing waiver of the right to court access.

Initially, we reject plaintiff's claim that the arbitration agreement is a contract of adhesion. The essence of an adhesion contract is that it is offered on a take it or leave it basis to a consumer who has no realistic bargaining strength and who cannot obtain the desired services or goods without consenting to the contract terms. Wheeler v. St. Joseph Hospital, 63 Cal.App.3d 345, 356, 133 Cal.Rptr. 775 (1976). Here, plaintiff's decedent was able to receive health care without foregoing the choice between arbitration or court trial. The arbitration act specifically requires these agreements to state that execution is not a prerequisite to treatment. M.C.L. §§ 600.5041(2), 600.5042(2); M.S.A. §§ 27A.5041(2), 27A.5042(2). Moreover, arbitration agreements may be revoked within 60 days of execution, or with regard to hospitals, within 60 days of discharge.

Likewise, we find without merit plaintiff's argument that the signing of the agreement constituted an unknowing waiver of constitutional rights. When plaintiff's decedent entered into the arbitration agreement, the only constitutional right waived was that to trial of any dispute before a court. ¹ The agreement provided in pertinent part:

"I understand that Michigan Law gives me the choice of trial by judge or jury or of arbitration. I understand that arbitration is a procedure by which a panel that is either mutually agreed upon or appointed decides the dispute rather than a judge or jury. I freely choose arbitration, and I agree that a judgment of any circuit court may be rendered upon any award or determination made pursuant to this agreement.

"I certify that I have read this agreement or have had it read to me and that I fully understand its content and execute this agreement of my own free will. I have received a complete copy of the booklet which explains this agreement."

Since we can only presume that plaintiff's decedent read the terms of agreement before signing it we conclude that she knowingly waived the right to court access as delineated above.

We find more troubling plaintiff's contention that the required composition of the arbitration panel violates due process. This issue has already produced a split of opinion among members of this Court. Compare Brown v. Siang, 107 Mich.App. 91, 309 N.W.2d 575 (1981), and the majority opinion in Morris v. Metriyakool, 107 Mich.App. 110, 309 N.W.2d 910 (1981), with Morris v. Metriyakool, 107 Mich.App. 110, 121-140; 309 N.W.2d 910 (1981) (Bronson, J., dissenting). We conclude, for the reasons expressed by Judges Bashara and Cynar in Brown, supra, and Morris, supra, that due process is not violated by the Act's requirement that a doctor or hospital administrator sit on arbitration panels. Nonetheless, we add the following observations.

In Crampton v. Dep't. of State, 395 Mich. 347, 235 N.W.2d 352 (1975), the Supreme Court held that the plaintiff, who had been arrested for drunk driving, was denied the due process right to a hearing before a fair and impartial tribunal when his driver's license was suspended by a two-member panel consisting of a representative of the Secretary of State and a police officer. The Court concluded that the risk that police officers "will be unable to step out of their roles as full-time law enforcement officials and into the role of unbiased decisionmaker in a law enforcement dispute between a citizen and a police officer presents a probability of unfairness too high to be constitutionally tolerable". Id. 395 Mich. 357-358.

Likewise, in Glass v. State Highway Com'r, 370 Mich. 482, 122 N.W.2d 651 (1963), the Supreme Court held that a deputy highway commissioner could not fairly conduct a hearing and decide on the necessity for condemnation of a parcel for highway purposes. The Court noted that the deputy commissioner was an interested person inasmuch as his own job security could depend on whether he carried into effect the highway planning decisions of his superior.

We believe that the danger of biased decisionmaking is significantly lower in the instant situation. The arbitration statute itself provides for procedures to reduce the possibility of bias among panel members. It instructs the arbitration association to conduct an initial screening of potential panel candidates for possible bias. Moreover, in each particular case a panel candidate is required to complete, under oath, a current personal disclosure statement. The parties to arbitration are to receive any information indicative of partiality. M.C.L. § 600.5045(1); M.S.A. § 27A.5045(1). The parties are also permitted to submit reasonable voir dire questions to an arbitration candidate within 10 days of receipt of the candidate's name. M.C.L. § 600.5045(2); M.S.A. § 27A.5045(2). The parties may strike from the list of potential candidates any person found unacceptable. M.C.L. § 600.5044(3); M.S.A. § 27A.5044(3). Although the arbitration association may ultimately impose a panel member upon the parties when a mutual agreement cannot be reached, panel members thus appointed are nonetheless subject to challenge for cause. M.C.L. § 600.5044(5); M.S.A. § 27A.5044(5).

We believe that these procedures provide sufficient protection against panel bias. To conclude otherwise would imply an inherent prejudice within the medical...