(concurring). I am in accord with the result reached by Judge Maher in this matter. I am also in accord with his holding that, when an arbitration agreement is challenged, a hearing must be conducted to determine whether there has been a knowing, intelligent and voluntary waiver of the right to a jury trial, that the burden of establishing a waiver rests with the hospital, and that the guidelines set forth are essential to protect the rights of the patient even though this may mean a case-by-case review of these matters by the trial court.
I write separately because I believe it necessary to concede that there is not yet available sufficient empirical data from which a determination can be made as to whether the medical malpractice act, MCL 600.5040 et seq.; MSA 27A.5040 et seq., is fulfilling its desired purpose and, if so, in a creditable fashion. There is much to suggest that it may not be. We are becoming more and more aware of this from the numerous cases that have come before us in recent months, raising issues that could not have been anticipated when the act was conceived. However, since the facts of this case do not require that we reach this larger issue, I am satisfied to leave it for another day and concur in Judge Maher’s opinion on the issue presented here.