Rome v. Sinai Hospital of Detroit , 112 Mich. App. 387 ( 1982 )

D. C. Riley, P.J.

We adopt the facts as they are clearly and concisely set forth in the dissenting opinion.

For the reasons stated in Brown v Siang, 107 Mich App 91; 309 NW2d 575 (1981), we hold that plaintiff’s due process right to a fair hearing before an impartial tribunal is not violated by MCL 600.5040 et seq.; MSA 27A.5040 et seq., where one of the three arbitrators assigned to hear a medical malpractice claim is a physician. Nor is the act unconscionable in that it abrogates plaintiff’s constitutional right of access to the courts. Thus, we affirm the trial court’s decision upholding the statute.

However, we conclude, further, that the third issue raised by the plaintiff — whether the arbitration form signed by plaintiff was an enforceable agreement where defendant hospital failed to provide plaintiff with an information brochure and a duplicate or original of the executed form as required by MCL 600.5042(7); MSA 27A.5042(7) — requires a remand to the trial court for an evidentiary hearing.

It is conceded that the plaintiff at no time has denied the existence of a signed arbitration agreement form. Nonetheless, the plaintiff contends that an arbitration agreement cannot be legally valid unless it is in strict conformance with the arbitration statute, MCL 600.5042(8); MSA 27A.5042(8). We agree.

In an affidavit dated January 31, 1979, attached to defendant’s brief, an employee of Sinai Hospital at the time of plaintiffs admission states that, in accordance with routine practice in carrying out her duties with respect to arbitration agreements, she explained the agreement to the plaintiff, gave her a copy of the agreement and brochure explaining the agreement, advised plaintiff that her signature was not required, and further, that if she did sign she had 60 days within which to revoke her agreement to arbitrate. Her affidavit attests further to witnessing the plaintiffs signature on the agreement.

The plaintiff, in her affidavits, acknowledges that an arbitration agreement was presented to her at the time of her hospitalization but states that no verbal explanation or information was provided her, that she did not receive the brochure setting forth details about the agreement and its revocation provision, that she did not receive a duplicate copy of the original agreement and that she did not understand the entire matter of arbitration.

In concluding that a remand is mandated to resolve the fact issue raised by plaintiff, we find Capman v Harper-Grace Hospital, 96 Mich App 510; 294 NW2d 205 (1980), and Pipper v DiMusto, 88 Mich App 743; 279 NW2d 542 (1979), to be instructive.

In Pipper, the Court held that the plaintiffs affidavit alleging that, at the time she was admitted into the hospital, she was receiving emergency treatment within the meaning of MCL 600.5042(1); MSA 27A.5042(1) (which provides that a person receiving emergency treatment must be offered the arbitration option after the emergency care or treatment is completed) created a question of fact requiring an evidentiary hearing to determine if the plaintiff met the conditions of the emergency exception.

In Capman, the plaintiff argued that defendant conditioned the providing of health care upon her signing the arbitration agreement and thereby improperly coerced her in direct violation of MCL 600.5042(2); MSA 27A.5042(2). The Capman Court, while noting plaintiffs "unsupported assertion” of coercion, concluded as follows:

"[I]n stating its conclusion, the trial court shall set forth the findings of fact and the law upon which it is based. It should be noted that the arbitration statute is in derogation of common law. It takes away one’s right to sue and have one’s case heard by a jury in the court of law. Although its objects are laudatory considering the plethora of malpractice litigation that has burdened our court dockets, the fact that it is purely a creature of statute in derogation of common law requires strict statutory compliance before arbitration may be ordered. To insure that such strict compliance was in effect herein, remand becomes necessary.” Capman, supra, 517-518.

We note that a fundamental rule of construction requires that the language of an agreement be given its plain meaning. New Amsterdam Casualty Co v Sokolowski, 374 Mich 340; 132 NW2d 66 (1965), Kukowski v Piskin, 99 Mich App 1; 297 NW2d 612 (1980). Further, we note that there is a strong public policy in this state favoring arbitration. Hence, arbitration clauses should be liberally construed with all doubts about the arbitrability of an issue to be resolved in favor of arbitration. Kukowski, supra, Detroit Automobile Inter-Ins Exchange v Reck, 90 Mich App 286; 282 NW2d 292 (1979). Nevertheless, consistent with Capman and Pippin, supra, we conclude that a remand is necessary herein to determine whether or not the plaintiff received a brochure describing the arbitration agreement and whether a duplicate or original copy of the agreement was provided the plaintiff.

Remanded to the trial court for proceedings consistent with this opinion.

M. B. Breighner, J., concurred.