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Vicksburg Partners9/22/2005
reviously confronted with a case which factually parallels today's case. To this end, we will buttress our review of procedural unconscionability with some recent decisions from another jurisdiction where the court considered similar admissions agreements involving patients and their care facilities.
. In Howell v. NHC Healthcare-Fort Sanders, Inc., 109 S.W.3d 731 (Tenn. Ct. App.), a case which was cited by Stephens in her trial court response to Vicksburg Partners' motion to compel, the Tennessee Court of Appeals held that the arbitration clause found within the body of the care facilities' admission agreement was unenforceable. While the facts in Howell presented the same fundamental questions we must address in today's case, the arbitration clause as well as the facts surrounding the execution of the admissions agreement are distinguishable. In Howell, the court found that the arbitration clause, which was located on page ten of an eleven page agreement, was "buried" within the larger document. Id. at 734. In support of this finding, the court noted that the arbitration provision was written in the same size font as the rest of the agreement and did not adequately explain how the arbitration procedure would work. Id. Additionally, the court found that the execution of the agreement militated against enforcement as Ms. Howell had to be placed in a nursing home expeditiously and the admission agreement had to be signed before admission could be accomplished. Id. at 735.
. In Howell, the Tennessee Court of Appeals relied heavily on the Tennessee Supreme Court's holding in Buracynski v. Eyring, 919 S.W.2d 314 (Tenn. 1996). In Buracynski, the Tennessee Supreme Court found that while the patient-doctor arbitration agreement was a contract of adhesion and was offered to the patient on a "take it or leave it basis", the simple fact that a contract is one of adhesion does not necessarily render it unenforceable. Id. at 320. The Tennessee Supreme Court examined the issue of enforceability and stated:
n general, courts are reluctant to enforce arbitration agreements between patients and health care providers when the agreements are hidden within other types of contracts and do not afford the patients an opportunity to question the terms or purpose of the agreement. This is so particularly when the agreements require the patient to choose between forever waiving the right to a trial by jury or foregoing necessary medical treatment, and when the agreements give the health care provider an unequal advantage in the arbitration process itself.
Id. at 321. In determining that the arbitration clause at issue in its case was enforceable, the court concluded:
The arbitration procedure specified by the agreement gives no unfair advantage to Eyring [physician]. Each side chooses an arbitrator, and the two arbitrators chosen appoint the third arbitrator. Eyring [physician] is bound by the arbitrators' decision, and any claim he has for payment of fees is subject to arbitration when a medical malpractice action is asserted. The patient is clearly informed by a provision in ten-point capital letter red type, directly above the signature line, that "by signing this contract you are giving up your right to a jury or court trial" on any medical malpractice claim. The agreements contain no buried terms. All terms are laid out clearly, including Article 2 of the agreements, which binds the spouse and heirs of the patient to the arbitration agreement.
Id. at 321.
. While the circumstances surrounding the execution of the admission agreement in today's case demonstrate that the agreement is a contract of adhesion, these facts and circumstances do not s
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