Hendrickson v. Moghissi

• Decision Date: 06 May 1987
• Docket Number: Docket No. 84203
• Citation: Hendrickson v. Moghissi, 404 N.W.2d 728, 158 Mich.App. 290 (Mich. App. 1987)
• Parties: Brenda HENDRICKSON and David Hendrickson, Plaintiffs-Appellants, v. Kamran MOGHISSI, M.D., and Hutzel Hospital, Defendants-Appellees. 158 Mich.App. 290, 404 N.W.2d 728
• Court: Court of Appeal of Michigan — District of US

Page 728

404 N.W.2d 728

Brenda HENDRICKSON and David HendricksonPlaintiffs-Appellants, v.Kamran MOGHISSI, M.D., and Hutzel HospitalDefendants-Appellees.

Docket No. 84203.

158 Mich.App. 290, 404 N.W.2d 728

Court of Appeals of Michigan.

Submitted June 26, 1986.

Decided March 3, 1987.

Released for Publication May 6, 1987.

[158 MICHAPP 292]Woll, Crowley, Berman, Olsman & Nolan, P.C. by Jules B. Olsman, Southfield, for plaintiffs-appellants.

Schureman, Frakes, Glass & Wulfmeier by Robert A. Obringer, Detroit, for Kamran Moghissi.

Dykema, Gossett, Spencer, Goodnow & Trigg by Daniel G. Wyllie, Kathleen McCree Lewis, and William J. Vincent, Detroit, for Hutzel Hosp.

Before KELLY, P.J., J.H. GILLIS and ERNST, ^* JJ.

KELLY, Presiding Judge.

Plaintiffs appeal as of right from an order of accelerated judgment entered March 22, 1985.The trial court concluded that it was without subject matter jurisdiction to entertain this controversy in light of a binding medical malpractice arbitration agreement signed by plaintiffBrenda Hendrickson.We do not agree with the trial court's jurisdictional analysis and we remand for further consideration in light of this opinion.

Plaintiffs filed this action on October 4, 1982, alleging that on August 5, 1981, defendant Moghissi had negligently performed a dilatation and curettage (D & C) procedure while plaintiffBrenda Hendrickson was an out-patient at defendant Hutzel Hospital.PlaintiffBrenda Hendrickson had been treating at the hospital's infertility clinic and had become pregnant.As a result of this surgical procedure, the pregnancy was inadvertently terminated.Plaintiffs allege that the defendants were negligent in failing to administer a pregnancy test [158 MICHAPP 293] prior to performing the D & C. PlaintiffDavid Hendrickson's claims are derivative in nature.

Although plaintiffs' action was filed in October of 1982, defendants did not assert the existence of an arbitration agreement until May of 1984, two months after the Michigan Supreme Court had released its decision in Morris v. Metriyakool, 418 Mich. 423, 344 N.W.2d 736(1984), resolving in defendants' favor a conflict in this Court regarding the constitutionality of the Malpractice Arbitration Act.M.C.L. Sec. 600.5040 et seq.;M.S.A. Sec. 27A.5040 et seq.Defendant hospital filed a motion for accelerated judgment on the basis of an arbitration agreement signed by plaintiffBrenda Hendrickson at the time of her admission to the hospital.Prior to the filing of the motion, both defendants had filed answers, various sets of interrogatories had been filed and some answered, and numerous depositions had been scheduled and noticed.Plaintiffs responded to the motion, which was subsequently joined in by defendant Moghissi, by contesting defendants' right to raise the arbitration agreement so late in the proceedings and by challenging the validity of the arbitration agreement, which, though signed by plaintiffBrenda Hendrickson, had allegedly never been accompanied by the information brochure required under M.C.L. Sec. 600.5041(6);M.S.A. Sec. 27A.5041(6).

The trial court conducted an evidentiary hearing on February 1, 1985, as to the circumstances surrounding the signing of the agreement.PlaintiffBrenda Hendrickson testified at the hearing that she did not receive the required information brochure.Defendant hospital presented the testimony of employee Cheryl Nicholson, who had signed the admitting form.Nicholson testified that while she had no independent recollection of Brenda Hendrickson, it was the habit of the receptionist in her [158 MICHAPP 294] office to provide a patient with a copy of the information brochure along with some forms to be filled out in the reception room.The patient would then be called by an admitting interviewer, who would routinely refer to the brochure when presenting the arbitration agreement for the patient's signature.On the basis of Nicholson's testimony, the trial court concluded as a matter of fact that Brenda Hendrickson had been provided the required information brochure and that the arbitration agreement therefore was valid and binding.Although plaintiffs challenge the trial court's factual finding, we cannot say that the finding is clearly erroneous.Precopio v. Detroit, 415 Mich. 457, 462, 330 N.W.2d 802(1982).The trial court properly relied upon habit testimony in support of its conclusion.SeeKunath v. Sinai Hospital of Detroit, 149 Mich.App. 32, 385 N.W.2d 715(1986).

Upon finding as a matter of fact the existence of a valid arbitration agreement, the trial court went on to conclude as a matter of law that the agreement deprived the circuit court of subject matter jurisdiction and that defendants could therefore raise the issue of binding arbitration at any time.Plaintiffs also challenge this conclusion of law and we are thus presented with the significant issue of whether a medical malpractice arbitration agreement deprives the circuit court of subject matter jurisdiction over plaintiffs' malpractice claims.

Although we find no Michigan cases directly relating to medical malpractice arbitration agreements, a detailed blueprint for analyzing the jurisdictional effects of arbitration agreements has been developed in the context of automobile insurance policies.In DAIIE v. Maurizio, 129 Mich.App. 166, 341 N.W.2d 262(1983), lv. den.419 Mich. 877(1984), the plaintiff insurer sought a declaratory ruling as to the "stacking" of insurance coverage.[158 MICHAPP 295]The trial court ruled in favor of the plaintiff and enjoined the defendant from proceeding with arbitration.Nearly three years later, the defendant filed a motion to vacate the judgment and injunction as void for lack of subject matter jurisdiction.The trial court granted the defendant's motion.The sole issue on appeal was whether a statutory arbitration agreement deprives the circuit court of subject matter jurisdiction over an arbitrable controversy, thus allowing a party to challenge a judicial decision as void, undeterred by any time constraints.

In rejecting the defendant's position in DAIIE v. Maurizio, regarding lack of subject matter jurisdiction, this Court first observed that the Michigan Constitution vests the circuit court with broad original jurisdiction over all matters, particularly civil, so long as jurisdiction is not expressly prohibited by law.Const.1963, art. 6, Sec. 13, 129 Mich.App. 172, 341 N.W.2d 262.Subject matter jurisdiction in particular is defined as the court's ability " 'to exercise judicial power over that class of cases; not the particular case before it, but rather the abstract power to try a case of the kind or character of the one pending.' "129 Mich.App. 172, 341 N.W.2d 262, citingJoy v. Two-Bit Corp., 287 Mich. 244, 253, 283 N.W. 45(1938).Circuit court jurisdiction over a particular subject matter is denied only by constitution or statute.M.C.L. Sec. 600.605;M.S.A. Sec. 27A.605.In construing such statutes or constitutional provisions, retention of jurisdiction is presumed and any intent to divest the circuit court of jurisdiction must be clearly and unambiguously stated.129 Mich.App. 174, 341 N.W.2d 262, citingLeo v. Atlas Industries, Inc., 370 Mich. 400, 402, 121 N.W.2d 926(1963), andCrane v. Reeder, 28 Mich. 527, 532-533(1874).

Application of the above analysis to the instant case persuades us that the circuit court is not [158 MICHAPP 296] deprived of subject matter jurisdiction over medical malpractice controversies governed by arbitration agreements.Medical malpractice claims constitute traditional civil actions for money damages and clearly fall within the circuit court's original subject matter jurisdiction.Neither party disputes this proposition.Defendants contend, however, that Sec. 5044(2) of the Malpractice Arbitration Act, M.C.L. Sec. 600.5040 et seq.;M.S.A. Sec. 27A.5040 et seq., and the Uniform Arbitration Act, M.C.L. Sec. 600.5001et seq.;M.S.A. Sec. 27A.5001 et seq., expressly deprive the circuit court of jurisdiction to hear medical malpractice claims where the complaining party has signed a valid and binding arbitration agreement.We disagree.

Section 5044(2) of the Malpractice Arbitration Act provides:

"An arbitration under this chapter shall be heard by a panel of 3 arbitrators.One shall be an attorney who shall be the chairperson and shall have jurisdiction over prehearing procedures, 1 shall be a physician, preferably but not necessarily from the respondent's medical specialty, and the third shall be a person who is neither a licensee of the health profession involved, a lawyer, nor a representative of a hospital or an insurance company.If a case involves a hospital only, a hospital administrator may be substituted for a physician.If a case involves a health care provider other than a physician, a licensee of the health profession involved shall be substituted for a physician."

This language does not, in our view, clearly and unambiguously deprive the circuit court of jurisdiction over medical malpractice claims if there exists an arbitration agreement.Contrary to defendants' claim, Sec. 5044(2) does not vest exclusive jurisdiction in a three-member panel of arbitrators.Moreover, our review of the entire Malpractice[158 MICHAPP 297]Arbitration Act fails to disclose a single sentence which could be construed as such a legislative mandate.

Even when we read the Malpractice Arbitration Act in conjunction with the Uniform Arbitration Act, we are unable to infer any intent on the part of the Legislature to deprive circuit courts of subject matter jurisdiction in these controversies.We recognize that two other panels of this Court have drawn the opposite conclusion.Bowes v. International Pharmakon Laboratories, Inc., 111 Mich.App. 410, 414, 314 N.W.2d 642(1981), andMorgan v. Kamil, 144 Mich.App. 171, 175, 375 N.W.2d 378(1985).In neither of these cases, however, was the issue of subject matter...