McKinstry v. Valley Obstetrics-Gynecology Clinic, P.C.

• Citation: 146 Mich.App. 307,380 N.W.2d 93
• Decision Date: 22 January 1986
• Docket Number: Docket No. 78811,OBSTETRICS-GYNECOLOGY
• Parties: Kathleen Louise McKINSTRY, Thomas McKinstry and Kathleen McKinstry, next friend of Amanda McKinstry, a Minor, Plaintiffs-Appellants, v. VALLEYCLINIC, P.C. and Saginaw General Hospital, jointly and severally, Defendants-Appellees. 146 Mich.App. 307, 380 N.W.2d 93
• Court: Court of Appeal of Michigan (US)

Page 93

380 N.W.2d 93

Kathleen Louise McKINSTRY, Thomas McKinstry and Kathleen McKinstry, next friend of Amanda McKinstry, a Minor, Plaintiffs-Appellants, v. VALLEY OBSTETRICS-GYNECOLOGY CLINIC, P.C. and Saginaw General Hospital, jointly and severally Defendants-Appellees.

Docket No. 78811.

146 Mich.App. 307, 380 N.W.2d 93

Court of Appeals of Michigan.

Submitted June 13, 1984.

Decided Oct. 8, 1985.

Released for Publication Jan. 22, 1986.

[146 MICHAPP 308] Charfoos, Christensen, Gilbert & Archer, P.C. by John N. Markwick, Detroit, for plaintiffs-appellants.

Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. by Stephen M. Kelley and Susan Healy Zitterman, Detroit, for Saginaw General Hosp.

McGraw & Borchard, P.C. by Patrick J. McGraw, Saginaw, for Valley Obstetrics-Gynecology Clinic, P.C.

Before DANHOF, C.J., and R.B. BURNS and WAHLS, JJ.

AFTER REMAND

PER CURIAM.

In our first opinion in this matter, we held that the medical malpractice arbitration act, M.C.L. Secs. 600.5040 et seq.; M.S.A. Sec. 27A.5040 et seq., was unconstitutional because the statutory agreement form failed to advise patients of the arbitration panel's statutorily mandated composition. Chief Judge Danhof dissented. 120 Mich.App. 479, [146 MICHAPP 309] 327 N.W.2d 507 (1982). In light of Morris v. Metriyakool, 418 Mich. 423, 344 N.W.2d 736 (1984), the Supreme Court vacated our judgment and remanded to us to consider plaintiffs' remaining issues. 419 Mich. 873, 348 N.W.2d 8 (1984). The case is now before us following our remand to the trial court for an evidentiary hearing on plaintiffs' claim that defendants did not strictly comply with the act.

On October 17, 1978, plaintiff Kathleen McKinstry was admitted to Saginaw General Hospital by employees of Valley Obstetrics-Gynecology Clinic, P.C. Kathleen was suffering from a pregnancy complication, the symptoms of which included high blood pressure, headaches, dizziness and seeing spots before her eyes. Upon admission to the hospital, she signed two arbitration agreements, one in her name and one in the name of "Baby or Babies McKinstry". During her hospital stay, Kathleen gave birth to a daughter, Amanda, who suffered a shoulder and arm injury known as Erb's Palsy. After her and Amanda's discharge from the hospital, Kathleen did not revoke either of the arbitration agreements within the sixty-day period provided for by the agreements and M.C.L. Sec. 600.5042(3); M.S.A. Sec. 27A.5042(3). Plaintiff Thomas McKinstry was not a party to the agreements.

I

We first address whether the arbitration agreements validly waived the plaintiffs' constitutional right to a jury trial. The initial question is who bears the burden of proof on this issue. In Morris, supra, the merits of this question were addressed by only two justices, in an opinion written by Justice Kavanagh with Justice Levin concurring. Justice Kavanagh wrote:

[146 MICHAPP 310] "We reject plaintiffs' allocation of the burden of proof to defendants. The burden of avoiding these arbitration agreements, as with other contracts, rests with those who would avoid them. The act states that an agreement to arbitrate which includes the statutory provisions shall be presumed valid. M.C.L. Secs. 600.5041(7), 600.5042(8); M.S.A. Secs. 27A.5041(7), 27A.5042(8).

"The burden of showing some ground for rescinding or invalidating a contract is not altered merely because the contract entails eschewal of constitutional rights. Plaintiffs' allegations of coercion, like other contract defenses of mistake, duress, and fraud, must be proven by the party seeking to avoid the contract on such grounds." 418 Mich. 439-440, 344 N.W.2d 736.

Since Morris, this Court has not found an easy answer to the question of who bears the burden of proving a valid waiver. In Roberts v. McNamara-Warren Community Hospital, 138 Mich.App. 691, 360 N.W.2d 279 (1984), a panel of this Court placed the burden on the defendant hospital, citing Moore v. Fragatos, 116 Mich.App. 179, 321 N.W.2d 781 (1982). In Aluia v. Harrison Community Hospital (On Remand) 39 Mich.App. 742, 362 N.W.2d 783 (1984), decedent's son's affidavit that he did not fully understand the admitting clerk's instructions and that, therefore, he could not adequately translate for the decedent was held to have raised a question of fact as to whether decedent may have been presumed to have known the contents of the agreement she signed. This Court reversed the order of accelerated judgment in favor of the defendant hospital and remanded for a hearing to determine if decedent made a knowing, informed waiver of her rights. The panel did not indicate who had the burden of proof. In Harte v. Sinai Hospital of Detroit, 144 Mich.App. 659, 375 N.W.2d 782 (1985), a panel of this Court concluded that, where plaintiffs have not alleged any noncompliance with statutory requirements, the agreements to arbitrate[146 MICHAPP 311] are presumed valid. Finding no factual issue concerning plaintiff's understanding of the contents of the agreements, this Court upheld the trial court's grant of summary judgment. The panel did not decide who had the burden of proof, although noting, as the Aluia Court had done, that Morris is not dispositive of the question.

We now hold that the burden is on plaintiffs to prove facts in avoidance of the medical malpractice arbitration agreements. This position was implicit in our first opinion in this matter, where we stated:

"We find without merit, however, plaintiffs' claim that because the agreement fails to provide a more detailed statement of the procedures used in arbitration pursuant to the MMAA, and an explanation of how they differ from those of a trial, there can be no knowing, intelligent and voluntary waiver of a patient's constitutional right to trial. Although plaintiffs' argument is consistent with positions recently espoused by members of this Court, ⁴ we agree with the majority in Brown v Siang, 107 Mich App 91; 309 NW 2d 575 (1981), and Cushman v Frankel, 111 Mich App 604; 314 NW 2d 705 (1981), that a more detailed statement is unnecessary for a valid waiver. See also Horn v Cooke, 118 Mich App 740; 325 NW 2d 558 (1982).

"The agreement specifically informs the patient of the right to trial by judge or jury and that arbitration is a substitute for trial.

"In signing the agreement plaintiff Kathleen McKinstry expressly certified that she did 'fully understand' the contents of the agreement. In the event of coercion or fraud in the execution of a particular arbitration agreement, the agreement, like any contract, is void or at least voidable. Horn v Cooke, supra; Brown v Siang, supra.

[146 MICHAPP 312] In this case we conclude that the arbitration agreements were valid waivers of the right to a jury trial. The court below found that defendants had complied with the act, that there was no fraud or coercion, and that Kathleen McKinstry was in a sufficient physical and mental condition to sign a valid arbitration agreement. The findings of fact are supported by the record and not clearly erroneous. MCR 2.613(C).

II

We next address whether Amanda McKinstry is bound by the arbitration agreement signed on her behalf before she was born.

M.C.L. Sec. 600.5046(2); M.S.A. Sec. 27A.5046(2) provides:

"A minor child shall be bound by a written agreement to arbitrate disputes, controversies, or issues upon the execution of an agreement on his behalf by a parent or legal guardian. The minor child may not subsequently disaffirm the agreement."

Plaintiffs argue that this statute is inapplicable to the instant case because a fetus in utero is not a minor child. We can agree that the term "minor child" does not include an unborn child, but we are not convinced that such a determination is dispositive of the issue at hand.

In construing a statute, we primarily seek to determine and give effect to legislative intent. Nash v. DAIIE, 120 Mich.App. 568, 571, 327 N.W.2d 521 (1982), lv....