Opinion
Docket No. 57547.
Decided March 8, 1983. Leave to appeal applied for.
Barr Walker (by Charles J. Barr), for plaintiff.
Kerr, Russell Weber (by Christine E. Moore), for Sherwin J. Lutz.
Garan, Lucow, Miller, Seward, Cooper Becker, P.C. (by Mark Shreve), for New Grace Hospital.
In this medical malpractice case the trial court granted the defendants' motions for accelerated judgment on the basis of lack of jurisdiction due to an arbitration agreement signed by the plaintiff. Plaintiff appeals by right.
Plaintiff first argues that the medical malpractice arbitration act, MCL 600.5040 et seq.; MSA 27A.5040 et seq., violates the plaintiff's due process rights to a fair and impartial tribunal because the statute requires that one of the three arbitrators be a physician or hospital administrator. There is currently a split of opinion on this Court as to whether the act is constitutional. Compare Murray v Wilner, 118 Mich. App. 352; 325 N.W.2d 422 (1982), and Jackson v Detroit Memorial Hospital, 110 Mich. App. 202; 312 N.W.2d 212 (1981), lv gtd 412 Mich. 885 (1981), with Cushman v Frankel, 111 Mich. App. 604; 314 N.W.2d 705 (1981); Williams v O'Connor, 108 Mich. App. 613; 310 N.W.2d 825 (1981), and Morris v Metriyakool, 107 Mich. App. 110; 309 N.W.2d 910 (1981), lv gtd 412 Mich. 884 (1981). We hope this split will soon be resolved by the Supreme Court in its consideration of Morris and Jackson. We are of the opinion that the reasoning set forth in Jackson, supra, and Murray, supra, is the better view and thus conclude that the act unconstitutionally deprives the plaintiff of his due process right to a fair and impartial tribunal.
Plaintiff's remaining issues on appeal are without merit. The terms of the agreement do not unconscionably exceed the reasonable expectations of an ordinary person. See Morris, supra, p 115. Furthermore, the arbitration agreement is not a contract of adhesion. Brown v Siang, 107 Mich. App. 91; 309 N.W.2d 575 (1981); Morris, supra, p 115.
Reversed.
I concur separately based on the opinion in Murray v Wilner, 118 Mich. App. 352; 325 N.W.2d 422 (1982).
I respectfully dissent from the majority's holding that the medical malpractice arbitration act, MCL 600.5040 et seq.; MSA 27A.5040 et seq., is unconstitutional. I participated in decisions upholding the constitutionality of the act in Williams v O'Connor, 108 Mich. App. 613; 310 N.W.2d 825 (1981), and Cushman v Frankel, 111 Mich. App. 604; 314 N.W.2d 705 (1982). Although 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 N.W.2d 422 (1982), I conclude that it would serve no purpose to delay our disposition of this case simply to allow me more time to reflect further on this question. This issue has been exhaustively discussed in numerous opinions from this Court and is presently before the Supreme Court, from whence its resolution should be forthcoming.