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Broemmer v. Otto5/9/1991
ealth care agreements drafted by the caregiver have considered the existence of alternative sources of care a determinative factor. In Obstetrics and Gynecologists v. Pepper, 101 Nev. 105, 693 P.2d 1259 (1985), the Nevada Supreme Court found that an arbitration agreement handed to a patient at a medical clinic as a condition for services was an adhesion contract because the patient was not offered a realistic opportunity to bargain for other terms. The opinion does not discuss the patient's options to go to other clinics.
Similarly, other courts have found that a hospital admission form containing an arbitration clause constitutes an adhesion contract because of the patient's inability to choose other providers. Wheeler v. St. Joseph Hospital, 63 Cal.App.3d at 356, 133 Cal.Rptr. at 783.
ASP and Otto correctly point out the absence of two characteristics of the classic adhesion contract. The arbitration agreement is not hidden in small print in boilerplate language in a lengthy document. Further, this arbitration provision is not favorable to the drafting party. See U.S. Insulation, Inc. v. Hilro Constr. Co., 146 Ariz. at 255-56, 705 P.2d at 495-96. However, neither Darner, Gordinier, nor the authorities which they cite imply that all characteristics must be present for a contract to be adhesive.
There is no evidence as to whether ASP would have performed the surgery if Broemmer refused to sign all three papers given her. However, Broemmer's uncontradicted affidavit states that she was given two standardized contracts and a medical history form and told to fill them out prior to meeting with a physician or nurse. She was not told that she was free to reject any of the documents. She merely believed that she had to sign the forms before she could receive medical services.
When an individual believes she needs immediate medical attention, she is unlikely to comparison shop for contract terms that relate to potential medical malpractice claims. If a medical entity uses a standardized form which contains an arbitration clause, and offers it to patients on a take it or leave it basis, the clause constitutes a contract of adhesion. Henderson, Contractual Problems In the Enforcement of Agreements To Arbitrate Medical Malpractice, 58 Va.L.Rev. 947 (1972).
ASP's standardized contract thus appears to be an adhesion contract. However, that determination alone does not render it unenforceable.
An adhesion contract is enforceable if it meets the reasonable expectations of the adhering party. Huff v. Bekins Moving & Storage Co., 145 Ariz. 496, 498, 702 P.2d 1341, 1343 (App.1985) (quoting Graham v. Scissor-Tail, Inc., 28 Cal.3d 807, 623 P.2d 165, 171 Cal.Rptr. 604 (1981). However, even if the contract provisions are consistent with the reasonable expectations of the party, they are unenforceable if they are oppressive or unconscionable. Id.
REASONABLE EXPECTATIONS
The Restatement (Second) of Contracts ยง 211 adopted in Darner provides that:
(1) Except as stated in Subsection (3), where a party to an agreement signs or otherwise manifests assent to a writing and has reason to believe that like writings are regularly used to embody terms of agreements of the same type, he adopts the writing as an integrated agreement with respect to the terms included in the writing . . . .
(3) Where the other party has reason to believe that the party manifesting such assent would not do so if he knew that the writing contained a particular term, the term is not part of the agreement.<
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