Manuel v. Pierce

328 N.W.2d 633, 121 Mich. App. 364

Opinions

J. R. Ernst, J.

Defendant Hutzel Hospital appeals, by leave granted, from an order denying its motion for an accelerated judgment. In denying the motion, the trial judge held that the medical malpractice arbitration act, MCL 600.5040 et seq.; MSA 27A.5040 et seq., is unconstitutional. I am not convinced that the act is unconstitutional and, therefore, conclude that the trial court’s decision must be reversed. At the same time, concern for safeguarding the rights of individuals who seek medical treatment compels me to comment regarding the proper procedure for analyzing a claim that a person has waived his right to bring an action for medical malpractice in a judicial forum. I am in accord with the result reached by this Court in Moore v Fragatos, 116 Mich App 179; 321 NW2d 781 (1982), and adopt the guidelines as expressed in part IV of that opinion.

Therefore, the decision of the trial court is reversed and the matter is remanded so that a hearing may be conducted at which defendant Hutzel Hospital has the burden of proving by clear and convincing evidence that plaintiffs decedent was provided with (and understood) the information required by Moore, supra, pp 202-203.

Reversed and remanded.