
    BOWMAN v LUTZ
    Docket No. 57547.
    Submitted May 17, 1982, at Detroit.
    Decided March 8, 1983.
    Leave to appeal applied for.
    Victor L. Bowman brought a medical malpractice action in Wayne Circuit Court against Dr. Sherwin J. Lutz and New Grace Hospital, alleging that as a result of the failure of Dr. Lutz to properly diagnose his condition when he came to the emergency room of New Grace Hospital he ultimately had to have his right testicle removed. Defendants moved for accelerated judgment on the basis that plaintiff had signed an arbitration agreement and his remedy lay in arbitration pursuant to that agreement. A hearing was held on the question of whether the signing of the agreement was the result of fraud, coercion or misrepresentation. Irwin H. Burdick, J., determined that the arbitration agreement was not secured by fraud, coercion or misrepresentation and granted defendants’ motion for accelerated judgment. Plaintiff appeals, arguing that the medical malpractice arbitration act is unconstitutional in that the requirement that one member of the arbitration panel be a doctor or a hospital administrator denies plaintiff’s due process right to a hearing before a fair and impartial tribunal, that the arbitration agreement is unconscionable, and that the arbitration agreement amounts to an adhesion contract. Held:
    
    1. The medical malpractice arbitration act is unconstitutional in that it denies plaintiff his due process right to a hearing before a fair and impartial tribunal.
    2. The arbitration agreement is neither unconscionable nor a contract of adhesion.
    N. J. Kaufman, J., concurred in a separate opinion.
    Reversed.
    M. F. Cavanagh, P.J., dissented. He does not agree with the holding of the majority that the medical malpractice arbitration act is unconstitutional.
    References for Points in Headnotes
    
       5 Am Jur 2d, Arbitration and Award § 8.
    Constitutionality of arbitration statutes. 55 ALR2d 432.
    
       17 Am Jur 2d, Contracts §§ 1, 5, 12, 13.
    
      1. Arbitration — Medical Malpractice — Due Process.
    The medical malpractice arbitration act unconstitutionally deprives a patient of his due process right to a fair and impartial tribunal (MCL 600.5040 et seq.; MSA 27A.5040 et seq.).
    
    2. Arbitration — Medical Malpractice — Adhesion Contracts.
    An agreement to arbitrate as provided for by the medical malpractice arbitration act is not a contract of adhesion or unconscionable (MCL 600.5040 et seq.; MSA 27A.5040 et seq.).
    
    
      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.
    Before: M. F. Cavanagh, P.J., and N. J. Kaufman and R. A. Benson, JJ.
    
      
       Circuit judge, sitting on the Court of Appeals by assignment.
    
   R. A. Benson, J.

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 plaintiffs 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 NW2d 422 (1982), and Jackson v Detroit Memorial Hospital, 110 Mich App 202; 312 NW2d 212 (1981), lv gtd 412 Mich 885 (1981), with Cushman v Frankel, 111 Mich App 604; 314 NW2d 705 (1981); Williams v O’Connor, 108 Mich App 613; 310 NW2d 825 (1981), and Morris v Metriyakool, 107 Mich App 110; 309 NW2d 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.

Plaintiffs 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 NW2d 575 (1981); Morris, supra, p 115.

Reversed.

N. J. Kaufman, J.

(concurring). I concur separately based on the opinion in Murray v Wilner, 118 Mich App 352; 325 NW2d 422 (1982).

M. F. Cavanagh, P.J.

(dissenting). 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 NW2d 825 (1981), and Cushman v Frankel, 111 Mich App 604; 314 NW2d 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 NW2d 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.  