Sabatini v. Marcuz , 122 Mich. App. 494 ( 1983 )

122 Mich. App. 494 (1983) 332 N.W.2d 512

SABATINI
v.
MARCUZ

Docket No. 60672.

Michigan Court of Appeals.

Decided January 19, 1983.

Levine & Benjamin, P.C. (by Barbara A. Pinkerton), for plaintiffs.

MacArthur & Cheatham (by Brian J. Doren), for defendants Marcuz and DiMusto.

Schureman, Frakes, Glass & Wulfmeier (by Edward C. Reynolds, Jr.), for defendant Kripke.

Kitch, Suhrheinrich, Smith, Saurbier & Drutchas, P.C. (by Donald A. Ducastel), for defendant St. Joseph Hospital of Mt. Clemens.

Before: M.F. CAVANAGH, P.J., and N.J. KAUFMAN and R.A. BENSON,^[*] JJ.

R.A. BENSON, J.

Plaintiffs appeal as of right from the trial court's order in a medical malpractice case granting defendants' motion for accelerated judgment based on the medical malpractice arbitration act. MCL 600.5040 et seq.; MSA 27A.5040 et seq.

Plaintiffs claim that the arbitration agreement is invalid because: (1) the arbitration agreement constitutes an unenforceable contract of adhesion; (2) the agreement is unconscionable since the patient is not provided with sufficient information from which to decide whether to relinquish his right of access to a court of law; and (3) the makeup of the arbitration panel violates plaintiffs' due process right to a fair and impartial tribunal.

Plaintiffs' contention that the arbitration agreement constitutes an unenforceable contract of adhesion has been uniformly rejected by this Court. Brown v Siang, 107 Mich. App. 91; 309 NW2d 575 (1981); Morris v Metriyakool, 107 Mich. App. 110; 309 NW2d 910 (1981), lv gtd 412 Mich. 884 (1981).

Furthermore, we are not persuaded that either the approach taken by a panel of this Court in Moore v Fragatos, 116 Mich. App. 179; 321 NW2d 781 (1982), or by Judge CYNAR in Gale v Providence Hospital, 118 Mich. App. 405; 325 NW2d 439 (1982), is correct. In our opinion, there is insufficient information before the Court concerning the issue of whether patients who sign such agreements are aware of the rights that they relinquish thereby.

The issue of whether the fact that the act requires that one of the three arbitration panel members be a physician or hospital administrator violates due process has produced a split of opinion among members of this Court. Compare Brown v Siang, supra; Morris v Metriyakool, supra; Williams v O'Connor, 108 Mich. App. 613; 310 NW2d 825 (1981); Cushman v Frankel, 111 Mich. App. 604; 314 NW2d 705 (1981); Rome v Sinai Hospital of Detroit, 112 Mich. App. 387; 316 NW2d 428 (1982), with Jackson v Detroit Memorial Hospital, 110 Mich. App. 202; 312 NW2d 212 (1981), lv gtd 412 Mich. 885 (1981); Piskorski v Art Centre Hospital, 110 Mich. App. 22; 312 NW2d 160 (1981); Murray v Wilner, 118 Mich. App. 352; 325 NW2d 422 (1982).

In our opinion, the reasoning announced in Jackson, supra, and Murray, supra, is the better view, and we adopt that position.

Reversed and remanded for trial.

N.J. KAUFMAN, J., concurred.

M.F. CAVANAGH, P.J. (dissenting).

I have participated in decisions upholding the constitutionality of the medical malpractice arbitration act, MCL 600.5040 et seq.; MSA 27A.5040 et seq. See Williams v O'Connor, 108 Mich. App. 613; 310 NW2d 825 (1981), and Cushman v Frankel, 111 Mich. App. 604; 314 NW2d 705 (1982). For this reason, I dissent from the majority's holding in this case. All sides of this question have been exhaustively discussed by numerous opinions of this Court. The matter has been argued and submitted to our Supreme Court whence the resolution of this dispute should be forthcoming. I am in the process of re-evaluating my position on this question based upon the very cogent opinion of Judge NATHAN KAUFMAN, my colleague in Cushman, supra, in the case of Murray v Wilner, 118 Mich. App. 352; 325 NW2d 422 (1982). However, as this issue is squarely framed for disposition by the Supreme Court, it would serve no purpose to delay our disposition of this case simply to allow me more time to reflect further on this question.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.