Sanchez v. Sirmons
| Decision Date | 04 August 1983 |
| Citation | 467 N.Y.S.2d 757,121 Misc.2d 249 |
| Parties | Carmen SANCHEZ, Petitioner, v. Meredith SIRMONS, M.D., Respondent. |
| Court | New York Supreme Court |
Seymour Epstein of Epstein, Newman & Lubitz, New York City, for sanchez.
Christopher P. DiGiulio of Morris, Duffy, Ivone & Jensen, New York City, for Dr. Sirmons.
Motion by the petitioner, Carmen Sanchez, to stay arbitration of a medical malpractice claim, demanded by the respondent, Meredith Sirmons, M.D., is granted.
The respondent is a medical doctor duly licensed to practice medicine in the State of New York. On June 28, 1980, he performed an elective abortion on the petitioner at his Manhattan office. Petitioner, alleging that she was the victim of an act of medical malpractice committed during the performance of the abortion, subsequently commenced a personal injury action against the respondent on July 20, 1982. Issue in the personal injury lawsuit was joined on September 13, 1982. However, on October 22, 1982, the named defendant therein, Dr. Sirmons, who is the respondent in the instant proceeding, served a demand for arbitration of the alleged medical malpractice dispute upon the plaintiff, Ms. Sanchez, the petitioner herein.
In response to Dr. Sirmons' arbitration demand, the petitioner, Ms. Sanchez, moved to stay arbitration. The motion was heard by a court of coordinate jurisdiction which directed that the matter be referred to this court for the purpose of conducting a preliminary trial to determine "the validity and enforceability of the arbitration clause in question" (see order dated January 17, 1983 issued by the Hon. Irwin M. Silbowitz).
Based upon the credible testimony and documentary evidence adduced during the trial of the instant proceeding, I find that Dr. Sirmons may not fairly demand arbitration of the malpractice action brought against him by Ms. Sanchez.
When the petitioner appeared at the respondent's office on June 28, 1980 to undergo the abortion, it was the first time she had ever been to his office. Upon her arrival there, the doctor's receptionist gave her various forms and papers to complete and sign. One of the papers the petitioner was asked to read and sign was entitled "Consent to Abortion" which contained the following provisions:
1. I, Carmen Sanchez, do hereby give my authorization and consent to an abortion to be performed upon me on or about by Dr. Sirmons.
2. I certify that I understand the meaning of the word abortion or termination of pregnancy.
3. I further certify that I am seeking this procedure of my own free will and that no coercion has been used.
4. I consent to the administration of anesthetics to be applied by or under the direction of the Doctor, and the use of such anesthetics as he may deem advisable in my case.
I also consent that said Doctor preceding and following the operation, perform any other procedure or treatment which is deemed necessary or desirable in order to perform the abortion.
5. Recognizing that an abortion requires the cooperation of technicians, Nurses, Assistants, and other personnel, I give my further consent to administrations and procedures on my body by all such qualified personnel working under the supervision of said Doctor before, during and after the operation to be performed.
6. Despite the great technical strides that have been made over the past decades, the practice of medicine is still an art and not a science. I have not been given any guarantee or promises of complete success and satisfaction from the procedure.
7. I have been informed that the risks of the abortion procedure occur in less than 0.5%. These risks are possible retained placental tissue, bleeding, infection or perforation.
8. I acknowledge that no guarantee or assurance has been made by anyone regarding the operation which I have requested and authorized.
9. I agree that any dispute or claim which I may have relating to the abortion or any related medical procedure or any consequences thereof shall be determined solely by arbitration under the auspices and pursuant to the rules and regulations of the American Arbitration Association.
10. I agree that this Consent To Abortion shall be binding upon me and my heirs, executors, and administrators.
11. I, the undersigned, grant permission to release an abstract of my Medical Record to my designated Doctor.
Witness: Name of Patient/s/ Carmen Sanchez
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Date: 6/28/80 Name of Parent: Tomasa Sanchez
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Guardian if Minor: --------------
The petitioner, who was twenty-seven years old when the abortion was performed, testified that she signed the consent to abortion agreement but did not study its numerous provisions, even though she is able to read and understand the English language, because she thought that she was only giving her consent to submit to an abortion.
Dr. Sirmons maintains that paragraph 9 of the agreement, quoted supra, is dispositive of the motion. However, he candidly admitted in his testimony that no one in his office informed the petitioner that upon signing the "Consent To Abortion" contract she waived her legal right to trial by jury. Nor did he himself, or any member of his office staff, explain to her the meaning of any of the other paragraphs set forth in the agreement which the petitioner was requested to sign.
Initially, the court rejects the petitioner's contention that the arbitration agreement is unenforceable because it constitutes a contract of adhesion. The essence of an adhesion contract is that it is offered on a take it or leave it basis to a consumer who has no realistic bargaining strength and cannot obtain the desired services or goods elsewhere without consenting to the identical contract terms (K.D. v. Educational Testing Service, 87 Misc.2d 657, 662, 386 N.Y.S.2d 747). That is not the case here. The petitioner, not confronted with a medical emergency, could have obtained an elective abortion elsewhere at countless other health facilities in the metropolitan area without being compelled to arbitrate any alleged malpractice claim arising from its performance.
Also, the court notes that the resolution of medical malpractice disputes by arbitration cannot be regarded as offensive to public policy since several states have enacted legislation which permit its use (Alaska, California, Maine, Michigan, Ohio and South Dakota). Although the New York Legislature has not as of the present time spoken on the subject, our appellate courts have enforced a dental patient's written consent to arbitrate an alleged malpractice claim where the patient executed the agreement after she acquired knowledge of the facts which gave rise to the alleged claim (Zupan v. Firestone, 91 A.D.2d 561, 457 N.Y.S.2d 43, affd. 59 N.Y.2d 709, 463 N.Y.S.2d 439, 450 N.E.2d 245).
Nevertheless, the arbitration clause embodied in the "Consent To Abortion" form cannot be invoked to compel arbitration in the case at bar because it has not been demonstrated that the petitioner made an informed and knowledgeable waiver of her constitutional right to trial by jury (Note, Medical Malpractice Arbitration: A Patient's Perspective, 61 Wash.Univ.L.Q. 123, 144). As will be seen infra, the arbitration contract here suffers from several infirmities which, in all fairness, precludes the court from sanctioning its validity.
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