Summary
In May v St. Luke's Hospital, 139 Mich. App. 452; 363 N.W.2d 6 (1984), the plaintiff was the administrator of the estate of the decedent, Kevin McKeown, and he was ordered by the trial court to arbitrate his case.
Summary of this case from Latham v. WedekingOpinion
Docket No. 78824.
Decided September 26, 1984.
Charfoos, Christensen, Gilbert Archer, P.C. (by John N. Markwick and Adrienne G. Southgate), for plaintiff.
Kitch, Suhrheinrich, Smith, Saurbier Drutchas, P.C. (by Mona K. Majzoub), for St. Luke's Hospital.
Smith Brooker, P.C. (by Richard G. Smith), for Robert Toteff, M.D., and Saginaw Cooperative Hospitals.
Before: DANHOF, C.J., and R.B. BURNS and WAHLS, JJ.
The plaintiff, administrator of the estate of Kevin McKeown, appeals from the order of the Saginaw County Circuit Court which compelled him to arbitrate his case by granting defendants' motion for accelerated judgment. In an earlier, unpublished opinion, a majority of this panel reversed the decision of the circuit court and held that the medical malpractice arbitration act (MMAA) was unconstitutional. MCL 600.5040 et seq.; MSA 27A.5040 et seq. The recent disposition of this issue by the Supreme Court in Morris v Metriyakool, 418 Mich. 423; 344 N.W.2d 736 (1984), resulted in the Supreme Court reversing our earlier ruling and remanding the case for consideration of the remaining issues raised by plaintiff, 419 Mich. 873 (1984).
Plaintiff argues that the case must be remanded to the trial court for an evidentiary hearing on the issue of whether defendant hospital executed the arbitration agreement in strict conformance with § 5041 of the arbitration statute. Plaintiff rests on the assertion of the decedent's mother that she was not given a copy of the information brochure, did not receive a copy of the agreement and was not given an explanation of the arbitration procedure. The trial judge held that the proper forum for the resolution of this factual dispute was the arbitration panel. The trial judge erred. This Court has consistently held that "the fact that (the MMAA) is purely a creature of statute in derogation of common law requires strict statutory compliance before arbitration may be ordered". Capman v Harper-Grace Hospital, 96 Mich. App. 510, 518; 294 N.W.2d 205 (1980). See also Rome v Sinai Hospital of Detroit, 112 Mich. App. 387, 391-393; 316 N.W.2d 428 (1982). Therefore, we remand this case for a determination of whether the arbitration agreement was executed properly in all respects.
We also remand for an evidentiary hearing on the plaintiff's claim that the arbitration agreement was presented to the decedent's mother before emergency treatment was completed. Section 5042(1) of the act would appear to prohibit this. Said hearing on remand is to be held within 30 days of this Court's release date of this opinion. Thereafter, the reporter shall provide this Court with a copy of the transcript within 50 days after the Court's decision. We retain jurisdiction because the character of the legal issues not addressed in this opinion will be affected by the outcome of the hearings.
Remanded.