Moore v. Fragatos

• Decision Date: 21 July 1982
• Docket Number: Docket No. 55332
• Court: Court of Appeal of Michigan — District of US
• Parties: De Witt T. MOORE and Marie Moore, Plaintiffs-Appellants, v. Peter FRAGATOS, M.D., David W. Lindner, M. D., David W. Lindner, M. D. & Associates, P.C., a Michigan corporation, S. Thawatchai, M.D., Levi L. Guerrero, M.D., and Detroit-Macomb Hospitals Association, a Michigan non-profit corporation, jointly and severally, Defendants-Appellees.

Page 781

321 N.W.2d 781

116 Mich.App. 179

De Witt T. MOORE and Marie Moore, Plaintiffs-Appellants, v. Peter FRAGATOS, M.D., David W. Lindner, M. D., David W Lindner, M. D. & Associates, P.C., a Michigan corporation S. Thawatchai, M.D., Levi L. Guerrero, M.D., and Detroit-Macomb Hospitals Association, a Michigan non-profit corporation, jointly and severally, Defendants-Appellees.

Docket No. 55332.

Court of Appeals of Michigan.

Submitted Nov. 9, 1981.

Decided April 30, 1982.

Released for Publication July 21, 1982.

Roth & Dean, P. C., Southfield, for plaintiffs-appellants.

Moll, Desenberg, Bayer & Behrendt by Stephen D. McGraw, Detroit, for defendants-appellees David W. Linder, M. D. and David W. Linder, M.D. and Associates, P.C.

Dice, Sweeney, Sullivan & Feikens, P.C. by David R. Getto, Detroit, for defendants-appellees Levi L. Guerrero and Detroit-Macomb Hospitals Ass'n.

Before MAHER, P. J., and WALSH and RILEY, JJ.

MAHER, Presiding Judge.

Plaintiffs appeal by right from an order of the circuit court granting defendants' motion for accelerated judgment.

On April 20, 1976, plaintiff DeWitt T. Moore (plaintiff) was admitted to Detroit Memorial Hospital. During his hospitalization, plaintiff underwent myelography and cervical disc surgery performed by defendant Dr. Peter Fragatos. These procedures formed the basis of a malpractice complaint filed against the defendants on April 19, 1978.

On April 11, 1980, defendant Detroit-Macomb Hospitals Association (the hospital) filed a motion to compel arbitration and/or for accelerated judgment, alleging that plaintiff had executed an arbitration agreement and had not revoked it within the statutorily prescribed time period and that, therefore, the trial court lacked subject-matter jurisdiction.

An evidentiary hearing was conducted on September 15, 1980. Both plaintiff and the admitting clerk of the hospital offered testimony bearing on the circumstances surrounding plaintiff's execution of the arbitration agreement. Plaintiff testified that when he was admitted he was handed some papers by the receptionist. The receptionist told him that the documents were his admittance papers and needed to be signed. After signing the papers, he was taken upstairs. According to plaintiff, he did not read the documents he signed, was unaware of their nature, and received no explanation of the documents from the receptionist.

Plaintiff was then shown a copy of the arbitration agreement. He identified the signature on the agreement as his own but contended that he would not have signed the document if it had been explained to him. According to plaintiff, he had been under the impression that he had to sign the documents in order to be admitted, and he did not learn that he had executed the agreement until almost a year later. Plaintiff did, however, admit that it was possible that the admitting clerk had, in fact, explained the agreement to him; nevertheless he insisted that he would not remember anything about any such explanation inasmuch as he was in pain at the time.

Linda Huckaby was the admitting clerk at Detroit Memorial Hospital on April 20, 1976. She did not specifically remember plaintiff's admission to the hospital on that date and could only testify about the so-called "standard procedure".

According to Huckaby, the arbitration agreements were first used in the spring of 1976. She testified that she was instructed to offer the arbitration agreement along with a patient information booklet and that she would explain to patients that the agreement "means that they [the patients] are agreeing to settle all grievances that they have against the hospital outside of court before an arbitration panel". According to Huckaby, she was required to explain the arbitration agreement to each patient and would even read the agreement to a patient who was unable to read. She testified that she would also inform patients that signing the form was "optional" and could be revoked within sixty days.

At the conclusion of the hearing, the trial court ruled from the bench that the medical Malpractice Arbitration Act, M.C.L. Sec. 600.5040 et seq.; M.S.A. Sec. 27A.5040 et seq., was constitutional and that plaintiff knowingly and voluntarily signed the arbitration agreement. On December 8, 1980, the court entered an order dismissing all defendants. Plaintiffs appeal as of right, contending, inter alia, that the trial court erred in finding that plaintiff knowingly and voluntarily signed the arbitration agreement.

I

Generally, panels of this Court which have dealt with the medical Malpractice Arbitration Act, M.C.L. Sec. 600.5040 et seq.; M.S.A. Sec. 27A.5040 et seq., have focused on its constitutionality. ¹ Typically, plaintiffs have contended that the act violates their "due process right to a hearing before a fair and impartial tribunal by mandating that at least one member of the arbitration panel be a physician, preferably from the defendant's medical specialty, or, where a hospital is the sole defendant, a hospital administrator. U.S.Const., Am. XIV; Const.1963, art. 1, Sec. 17; M.C.L. Sec. 600.5044(2); M.S.A. Sec. 27A.5044(2)." Jackson v. Detroit Memorial Hospital, 110 Mich.App. 202, 204, 312 N.W.2d 212 (1981). Although this argument would have considerable merit in the context of a statutory scheme providing for mandatory arbitration, it is less persuasive in the situation before us in view of the fact that an arbitration agreement is essentially a contract between two private parties. ² Therefore, our inquiry must focus on the contractual aspects of the malpractice arbitration problem.

We begin with the proposition that access to the court system is a fundamental constitutional right. U.S.Const. Am. XIV. ³ The arbitration agreement involved here is, therefore, a special kind of contract, since it entails the waiver of a fundamental constitutional right. It is well-settled that, in order to establish the waiver of a fundamental constitutional right in the context of a criminal proceeding, the state must show that the waiver was made knowingly, voluntarily, and intelligently. See, e.g., Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970); Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). However, it is unclear whether a similar standard applies to civil proceedings.

The United States Supreme Court has found it unnecessary to address this issue in two recent cases involving due process in civil proceedings. ⁴ However, the Court has stated, with reference to civil proceedings, that "[w]e do not presume acquiescence in the loss of fundamental rights". Ohio Bell Telephone Co. v. Public Utilities Comm., 301 U.S. 292, 307, 57 S.Ct. 724, 731, 81 L.Ed. 1093 (1937). Moreover, the Court has held that, in the civil area, "courts indulge every reasonable presumption against waiver". Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 811, 81 L.Ed. 1177 (1937).

The United States Supreme Court has wisely interpreted the Constitution to provide a broad range of procedural protections of the rights of criminal defendants. We perceive no good reason why honest law-abiding citizens should not be entitled to similar protections. Accordingly, we hold that a party in a civil proceeding seeking to assert a waiver of the constitutional right to access to the courts must establish that the waiver was made knowingly, voluntarily and intelligently. ⁵

We turn now to the application of this principle to the case at bar.

II

In order to assert a waiver of plaintiff's right to court access, defendants must show that the waiver was knowing, intelligent, and voluntary.

A

We begin with an analysis of the requirement that the waiver be made knowingly.

Assuming arguendo that if plaintiff had read the agreement (or if it had been explained to him) his waiver could be properly characterized as "knowing", was there sufficient evidence that plaintiff read or was informed of the nature of the agreement?

There was very little evidence that plaintiff was aware that he was signing an arbitration agreement. Plaintiff testified that he never read the papers he signed and that he did not remember being informed of their nature (other than that they were admittance papers and needed to be signed). Witness Huckaby, on the other hand, could only testify about the hospital's "usual procedure" and provided no direct evidence that plaintiff was aware of the nature of the agreement. One additional factor provides support for a finding that the waiver was "knowing": the presumption that a person has read what he has signed. See Cleaver v. The Traders' Ins. Co., 65 Mich. 527, 32 N.W. 660 (1887). ⁶ This presumption, in our view, rests not upon reality, but upon procedural convenience. As such, it cannot stand against the presumption against waiver of a constitutional right, which is based upon a rational inference from the facts. ⁷ We find the latter presumption the weightier of the two; therefore, it must prevail. ⁸

The only evidence of a knowing waiver in the instant case was testimony bearing on the hospital's "usual procedure". In order to establish such a waiver, the record must affirmatively show that the plaintiff was aware that he was signing an arbitration agreement. Surely, in a criminal proceeding, the prosecution could not withstand a Miranda challenge merely by presenting a police officer's testimony that it was his "usual practice" to inform suspects of their rights before attempting to obtain confessions. Nor could the prosecution meet its burden by producing a waiver form signed by the defendant, absent affirmative proof that he had read the form, or that it had been read to him. ⁹

We conclude that defendants failed to present sufficient evidence of a knowing waiver of plaintiff's right to access to the courts. Accordingly, we hold that the trial court erred in granting defendants' motion for accelerated judgment. Plaint...