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Broemmer v. Otto5/9/1991
ment, she would have been unfairly surprised by later finding out that the administrative fees were so high.
We find that the fee schedule is not oppressive. The arbitration rules also provide that the fee is deferrable, reducible, or apportionable. American Arbitration Association Commercial Rules, Rule 48. Furthermore, the AAA fees are well below the costs of litigating the same claim.
Broemmer next argues that the provision requiring the appointment of an arbitrator in obstetrics/gynecology renders the agreement unconscionable. She contends that such an individual will necessarily favor the defendant doctors. She argues that an agreement to arbitrate should not be enforced where an arbitrator is so closely aligned to one of the parties that the agreement becomes illusory. See In re Cross & Brown Co., 4 A.D.2d 501, 167 N.Y.S.2d 573 (1957); Graham v. Scissor-Tail, Inc., 623 P.2d at 165, 171 Cal.Rptr. at 604.
She argues further that the interests of ASP and Otto are so closely aligned with the interests of all obstetricians that the agreement is illusory.
In support of her position, she relies upon the dissenting opinion in Morris v. Metriyakool, 418 Mich. 423, 344 N.W.2d 736 (1984). However, the majority opinion addressing the unconscionability issue states:
Neither physicians nor hospital administrators have professional interests that are adverse to patients or even malpractice claimants on a consistent, daily basis. Any identity of interest with respondents is not so strong as to create a subliminal bias for one side and against the other.
418 Mich. at 437, 344 N.W.2d at 741. Other courts have taken a similar position. Most cases hold that use of health care providers as arbitrators does not reflect any automatic bias against the claimant. See DiFilippo v. Beck, 520 F.Supp. 1009 (D.Del.1981); Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 353-54 (Alaska 1988); State ex rel. Strykowski v. Wilkie, 81 Wis.2d 491, 261 N.W.2d 434 (1978).
Broemmer failed to present any evidence in the trial court concerning the unconscionability of requiring an obstetrician/gynecologist as arbitrator. To the extent the record addresses this issue, we note that the AAA rules provide that a list of proposed arbitrators be submitted to each party. Rules of Amer. Arbitration Association Commercial Rules, Rule 13. Each party may then cross out any objectionable names and indicate a preference from those remaining. Id. The rules also require the disclosure of information likely to affect impartiality. American Association Commercial Rules, Rule 19.
In view of these factors, we find no merit in Broemmer's contention that the required appointment of an obstetrician/gynecologist as an arbitrator of her medical malpractice dispute is unconscionable on its face.
DR. OTTO
Broemmer next contends that Otto is not a party to the arbitration agreement because he is not expressly named in the contract documents.
The agreement between the parties consists of two separate documents, the consent to operation and the agreement to arbitrate. The agreements must be read as a whole, with each part read in light of the other parts. C & T Land and Dev. Co. v. Bushnell, 106 Ariz. 21, 22, 470 P.2d 102, 103 (1970). The consent to operate does not identify the operating physician by name. The agreement to arbitrate identifies the parties to the agreement as Broemmer and "Robert H. Tamis, M.D., Abortion Services of Phoenix, referred to hereinafter as Doctor, its agents, servants and employees . . . ."
In
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