Murray v. Wilner

• Decision Date: 09 November 1982
• Docket Number: Docket No. 50386
• Citation: 325 N.W.2d 422,118 Mich.App. 352
• Parties: Mona MURRAY, Plaintiff-Appellant, v. Irwin A. WILNER, M.D., Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 422

325 N.W.2d 422

118 Mich.App. 352

Mona MURRAY, Plaintiff-Appellant, v. Irwin A. WILNER, M.D., Defendant-Appellee.

Docket No. 50386.

Court of Appeals of Michigan.

Submitted Feb. 3, 1982.

Decided July 21, 1982.

Released for Publication Nov. 9, 1982.

Lopatin, Miller, Freedman, Bluestone, Erlich & Rosen, Detroit, for plaintiff-appellant.

Moll, Desenberg, Bayer & Behrendt, Detroit, for defendant-appellee.

Before KAUFMAN, P.J., and MAHER and CYNAR, JJ.

KAUFMAN, Presiding Judge.

Plaintiff appeals as of right from the trial court's grant of accelerated judgment dismissing her medical malpractice action.

On April 1, 1977, defendant fitted plaintiff with an intrauterine device (IUD). On February 24, 1978, defendant performed a tubal ligation on plaintiff but failed to remove the IUD. The IUD subsequently became partially imbedded in the endometrium and plaintiff became ill with endometritis. Prior to the tubal ligation plaintiff signed an arbitration agreement form. See M.C.L. Sec. 600.5040 et seq.; M.S.A. Sec. 27A.5040 et seq. Defendant's motion for accelerated judgment was based on the effect of the arbitration agreement in depriving the court of subject matter jurisdiction.

The Medical Malpractice Arbitration Act, M.C.L. Sec. 600.5040 et seq.; M.S.A. Sec. 27A.5040 et seq., was the legislative response to a perceived mounting crisis in the area of medical malpractice. The decade preceding the enactment of the statute saw a rapid rise in the cost of medical malpractice insurance combined with a decline in the availability of insurance. E.g., Report of the Secretary's Commission on Medical Malpractice, Department of Health, Education and Welfare (1973), "Rise in Malpractice Claims Forces Look at Previous Scare", Hospitals, March 16, 1981, pp. 85-90. Arbitration, it is believed, will provide an alternative decisional mechanism that will result in an overall reduction in malpractice costs. ¹ Under the Act, the arbitration panel replaces the trial court in the resolution of medical malpractice disputes. The losing party to an arbitration award is not entitled to de novo review or a trial subsequent to arbitration. Cf. State ex rel. Strykowski v. Wilkie, 81 Wis.2d 491, 515, 261 N.W.2d 434 (1978); Parker v. Children's Hospital of Philadelphia, 483 Pa. 106, 394 A.2d 932 (1978).

In this appeal, plaintiff contends that the agreement was invalid because: 1) the arbitration statute violates her due process right to a hearing before a fair and impartial tribunal by requiring that at least one member of the arbitration panel be a physician or hospital administrator ²; 2) the agreement is unconscionable because its terms are beyond the comprehension and reasonable expectation of an ordinary person faced with prospective medical treatment or hospitalization; and 3) the agreement constituted a contract of adhesion.

These issues have previously been considered by panels of this Court. The panels have been unanimous in rejecting claims that the arbitration agreement form is unconscionable or an adhesion contract. E.g., Brown v. Siang, 107 Mich.App. 91, 309 N.W.2d 575 (1981); Morris v. Metriyakool, 107 Mich.App. 110, 309 N.W.2d 910 (1981); Jackson v. Detroit Memorial Hospital, 110 Mich.App. 202, 312 N.W.2d 212 (1981); Piskorski v. Art Centre Hospital, 110 Mich.App. 22, 312 N.W.2d 160 (1981). We agree that these claims are without merit. See Cushman v. Frankel, 111 Mich.App. 604, 314 N.W.2d 705 (1981). The question of whether the arbitration statute violates a claimant's right to due process because of the required makeup of the arbitration panels has produced a split of opinion among members of this Court. Compare Brown v. Siang, supra; Morris v. Metriyakool, supra; Brown v. Considine, 108 Mich.App. 504, 310 N.W.2d 441 (1981), with Jackson v. Detroit Memorial Hospital, supra; Piskorski v. Art Centre Hospital, supra. In Cushman v. Frankel, supra, we took the position that no due process violation exists. The Cushman opinion concluded that the procedures written into the arbitration statute to reduce bias among arbitration panel members sufficiently protected against the danger of biased decision making. Now, upon further reflection and repeated consideration of this issue, we are of the opinion that due process is violated when a medical malpractice arbitration panel must employ either a doctor or hospital administrator among its members.

A hearing before an unbiased and impartial decision-maker is basic to the concept of due process of law. Thus, it has long been held that judicial or quasi-judicial officers are disqualified by their interest in the controversy before them. Tumey v. Ohio, 273 U.S. 510, 522, 47 S.Ct. 437, 441, 71 L.Ed. 749 (1927). In Tumey, the United States Supreme Court held that a defendant convicted for violating prohibition was denied due process of law where the judge deciding his case had a pecuniary interest in its outcome. The defendant was convicted before a mayor's court that shared county-wide jurisdiction over such offenses. In addition to his regular salary, the mayor was compensated directly from the fees and costs that he assessed against convicted violators. Absent convictions, the mayor received no compensation for his services as judge. Moreover, a substantial portion of the fines levied contributed to the general finances of the mayor's village. The Court, through Chief Justice Taft, wrote:

"All questions of judicial qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion. Wheeling v. Black, 25 W.Va. 266, 270. But it certainly violates the Fourteenth Amendment, and deprives a defendant in a criminal case of due process of law, to subject his liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case." 273 U.S. at 522, 523, 47 S.Ct. at 441.

The Court observed that, although there were certainly mayors whose judgment would not be affected by the pecuniary interest inherent in the system, due process could not be satisfied by an assumption that mayors who acted in a judicial capacity would stoically remain above self-interest. Id., 532, 47 S.Ct. at 444:

"Every procedure 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, denies the latter due process of law."

In Tumey, the mayor's court system offered a possible temptation because of the mayor's own pecuniary interest as well as his indirect interest in maintaining the finances of the village. Id., 532-541, 47 S.Ct. at 444-447.

In In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), the Supreme Court held that due process was violated where witnesses were adjudged in contempt for their conduct before a Michigan one-man grand jury by the same judge who sat as the one-man grand jury. The two witnesses were called to testify concerning suspected gambling in Detroit and the alleged bribery of police officers. The judge was convinced that one witness had committed perjury, while the second refused to testify without counsel present. Both were charged with contempt and ordered to appear and show cause why they should not be punished for criminal contempt. The judge rejected arguments by the witnesses that they were denied fair and impartial trial by being tried before him in spite of his grand jury role. The Supreme Court held that due process prohibited a judge from taking on the dual positions of complainant-prosecutor and adjudicator. The Court reasoned:

"A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that 'every procedure which would offer a possible temptation to the average man as a judge * * * not to hold the balance nice, clear, and true between the State and the accused, denies the latter due process of law.' Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749, 50 A.L.R. 1243. Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way 'justice must satisfy the appearance of justice.' Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11." 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942.

More recently, in Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972), the Court reiterated that due process may be violated even when the interest of the decision-maker is less immediate than that examined in Tumey. There, a traffic offense conviction before a mayor's court was reversed where the mayor was responsible for village finances, and where a major part of those finances was derived from the fines, forfeitures, costs and fees imposed by the mayor's court. The mayor in Ward did not share directly in the fees and costs obtained. The Ward Court indicated that the proper due process test from Tumey was "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 * * * ' ". 409 U.S. at 59, 60, 93...