Roberts v. McNamara-Warren Community Hosp.

• Decision Date: 07 January 1985
• Docket Number: Docket No. 64600,NAMARA-WARREN
• Citation: 360 N.W.2d 279,138 Mich.App. 691
• Parties: Melanie Lynne ROBERTS, Plaintiff-Appellant, v. McCOMMUNITY HOSPITAL, a Michigan Non-Profit Corporation and Carroll Knauss, D.O., Defendant-Appellee, and Basil J. Marrella, D.O., Defendant. 138 Mich.App. 691, 360 N.W.2d 279
• Court: Court of Appeal of Michigan — District of US

Page 279

360 N.W.2d 279

Melanie Lynne ROBERTS, Plaintiff-Appellant, v. McNAMARA-WARREN COMMUNITY HOSPITAL, a Michigan Non-Profit Corporation and Carroll Knauss, D.O. Defendant-Appellee and Basil J. Marrella, D.O., Defendant.

Docket No. 64600.

138 Mich.App. 691, 360 N.W.2d 279

Court of Appeals of Michigan.

Submitted May 15, 1984.

Decided Nov. 6, 1984.

Released for Publication Jan. 7, 1985.

[138 MICHAPP 692] Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. by David K. Barnes, Jr., Detroit, for plaintiff-appellant.

Kaufman, Payton & Kallas by Donald L. Payton, Southfield, for McNamara-Warren Community Hosp.

Williams, Schaefer, Ruby & Williams, P.C. by David D. Patton, Bloomfield Hills, for Carroll Knauss.

Before KELLY, P.J., and BRONSON and SIMON ^*, JJ.

PER CURIAM.

Plaintiff appeals by leave granted from the trial court's order compelling arbitration of her medical malpractice claims against defendants McNamara-Warren Community Hospital and Carroll Knauss, D.O. Defendant Basil Marella, D.O., is not a party to this appeal. We reverse.

On March 7, 1979, when plaintiff was 16 years old, she was admitted to McNamara-Warren Community Hospital for a laparoscopy procedure. Plaintiff's mother signed a standard arbitration [138 MICHAPP 693] agreement, a copy of which is contained in the trial court record. During the laparoscopy, plaintiff's uterus was lacerated, resulting in serious complications. Plaintiff waited until she was 18 years of age to file this medical malpractice action against the defendants.

Defendants McNamara-Warren Hospital and Knauss filed motions to dismiss plaintiff's action on the ground that it was barred by the arbitration agreement signed by her mother. Following arguments on the motions, the trial court ordered plaintiff to arbitrate her medical malpractice claims against these two defendants.

Plaintiff raises several arguments on appeal, all of which were raised and thus preserved at the trial court level. We find one of plaintiff's arguments dispositive. Plaintiff contends that the arbitration agreement is unenforceable because neither she nor her mother was provided the information brochure required under M.C.L. Sec. 600.5041(6); M.S.A. Sec. 27A.5041(6). Arbitration agreements under the malpractice arbitration act, M.C.L. Sec. 600.5040 et seq.; M.S.A. Sec. 27A.5040 et seq., are not legally enforceable unless obtained in strict compliance with the requirements of the statute. Ewald v. Pontiac General Hospital, 121 Mich.App. 793, 797, 329 N.W.2d 495 (1982). Section 5041(6) of this act provides:

"The form of the agreement promulgated shall be accompanied by an information brochure which clearly details the agreement and revocation provision. The brochure shall be furnished the person receiving health care at the time of execution. The person receiving health care shall be furnished with either an original or duplicate original of the agreement."

Failure to supply the patient with a copy of the brochure results in an unenforceable arbitration agreement. McCloy v. Dorfman, 123 Mich.App. 710, [138 MICHAPP 694] 716-717, 333 N.W.2d 338 (1983); Ewald v. Pontiac General Hospital, supra.

No evidentiary hearing was conducted in the instant case to ascertain the circumstances surrounding the signing of the arbitration agreement. According to the deposition testimony of plaintiff's mother, Shirley Roberts, she was given the arbitration form along with several other forms at the time of admission. Plaintiff's mother recalls being told by the admitting clerk that she was not required to sign the form but does not recall being given any information brochure and does not recall having engaged in any other discussion regarding the arbitration agreement.

An arbitration agreement is a contract requiring the mutual assent of the parties. Thus, the threshold inquiry in determining whether a matter is subject to arbitration is whether an arbitration agreement exists. Horn v. Cooke, 118 Mich.App. 740, 744, 325 N.W.2d 558 (1982). This Court has held that the burden is on the defendant to show that plaintiff knowingly, intelligently, and voluntarily waived his or her right to court access. Moore v....