Originally from Dispute Resolution Journal

MEDICAL MALPRACTICE—CONSTITUTIONALITY OF STATUTE—MCL 600.5040—MICHIGAN

The Michigan Court of Appeals ruled that the Michigan Medical Malpractice Act, which provides for voluntary election by patients to arbitrate malpractice claims, is not a contract of adhesion, nor does it violate due process rights, and is therefore constitutional. In two separate opinions, the court recognized the issues before it as issues of first impression, and determined that the plaintiffs had failed to meet their burden of proof of the statute's unconstitutionality. In the first case, plaintiff Brown filed a medical malpractice claim against Dr. Siang and Sinai Hospital on behalf of her decedent, alleging negligence and wrongful death. Because the patient had signed an agreement to arbitrate upon admission to the hospital, the hospital moved for and obtained an accelerated judgment in the trial court, and the plaintiff appealed. Unconstitutionality of the statute was claimed on three grounds: (1) the statute violated the plaintiff's due process right to a fair and impartial hearing because one member of the tribunal must be either a physician or a hospital administrator; (2) because patients are subjected to feelings of anxiety and stress when in the hospital, they do not knowingly waive the right to judicial process when they sign the arbitration agreement, thus violating due process; and (3) the arbitration agreement itself is a contract of adhesion and is therefore unenforceable. The court, after a lengthy review of applicable case law, rejected the plaintiff's three arguments for unconstitutionality. In the second case, plaintiff Morris, alleging malpractice during surgery, had signed an arbitration agreement when admitted to the hospital. As above, the hospital was successful in getting the case dismissed. The plaintiff appealed, claiming unconstitutionality of the statute on due process grounds because of the unavoidable bias of the physician-arbitrator. Although several of the justices expressed reservations about the statute and the requirement that one member of the panel be a doctor or hospital administrator, the court nevertheless was not satisfied with the plaintiff's proof of the statute's unconstitutionality. Brown v. Sinai Hospital, No. 45249, and Morris v. South Macomb Hospital, 309 N.W.2d 575 (Mich. Ct. App. 1981).