PIPPER
v.
DiMUSTO
Docket Nos. 78-602, 78-1013.
Michigan Court of Appeals.
Decided February 13, 1979.Lopatin, Miller, Bindes, Freedman & Bluestone (by Michael Gagleard), for plaintiff.
*744 Sullivan, Ranger, Ward & Bone, for St. Joseph's Hospital.
Schureman, Frakes, Glass & Wulfmeier (by Robert A. Obringer), for defendant DiMusto.
Amicus Curiae: Nederlander, Dodge & McCauley, P.C., for the Physicians Crisis Committee.
Before: DANHOF, C.J., and R.M. MAHER and D.C. RILEY, JJ.
PER CURIAM.
Plaintiff commenced this medical malpractice action alleging that Dr. J.C. DiMusto, a gynecologist and obstetrician at St. Joseph's Hospital of Mount Clemens, failed to properly diagnose and treat plaintiff's condition which was ultimately determined to be an ectopic pregnancy.
Defendant hospital moved for accelerated judgment under GCR 1963, 116.1(2), asserting that plaintiff, on the date of her admission to the hospital, May 3, 1976, executed an arbitration agreement pursuant to the Malpractice Arbitration Act, MCL 600.5040 et seq.; MSA 27A.5040 et seq. The hospital further alleged that because plaintiff had made no demand for arbitration nor had timely revoked the arbitration agreement, the court lacked subject matter jurisdiction to decide the suit.
In answer to the motion, plaintiff contended, inter alia, that the agreement was vitiated because at the time it was signed she was experiencing uterine bleeding and abdominal pain. Plaintiff also responded with a broad scale attack upon the constitutionality of the Malpractice Arbitration Act, claiming that it denied her due process of law by requiring that one member of the three-member *745 arbitration panel be a doctor, who, presumptively, would be biased in favor of the defendants.
A hearing on defendant hospital's motion for accelerated judgment was held, and on August 30, 1977, the trial court entered a written opinion finding the arbitration agreement valid, upholding the act as constitutional, and granting the hospital's motion. The motion of defendant Dr. DiMusto for accelerated judgment was also subsequently allowed. From both decisions plaintiff appeals as of right.
We need not address the constitutional issue presented because of our determination that the lower court prematurely granted accelerated judgment.
MCL 600.5042(1); MSA 27A.5042(1) provides:
"A person who receives health care in a hospital may execute an agreement to arbitrate a dispute, controversy, or issue arising out of health care or treatment rendered by the hospital. A person receiving emergency health care or treatment may be offered the option to arbitrate but shall be offered the option after the emergency care or treatment is completed." (Emphasis supplied.)
In an affidavit attached to her answer to the motion for accelerated judgment, plaintiff stated:
"That at the time I was admitted into St. Joseph Hospital of Mt. Clemens, on or about May 3, 1976, I was suffering from prolonged uterine bleeding and had extreme amounts of abdominal pain."
Therefore, the validity of the arbitration agreement was contingent upon whether plaintiff's hospital entrance was governed by the statute above.
We hold that plaintiff's affidavit sufficiently created *746 a disputed question of fact as to whether she was "a person receiving emergency health care or treatment" within the meaning of the statute, and whether the hospital offered her the option to arbitrate after the emergency care or treatment was completed. Although the lower court ruled the agreement valid, there was no trial or evidentiary hearing held on this prefatory question. See GCR 1963, 116.3. If applicable in the case at bar, the emergency exception to the act would render nugatory plaintiff's arbitration agreement.
Accordingly, we reverse and remand for the appropriate inquiry. In doing so we vacate the trial judge's constitutional ruling. In the event plaintiff does not meet the conditions of the emergency exception, she may still challenge the statute's constitutionality. See American Motorists Ins Co v Llanes, 396 Mich. 113, 114-115; 240 NW2d 203 (1976), and cases cited therein.
Reversed and remanded. We retain no further jurisdiction. Costs to abide the final outcome.