Cleveland v. Mann, 942 So. 2d 108 (Miss. 2006)

The decision of the trial court was reversed and arbitration was compelled. On September 17, 2002, Mann underwent a total gastrectomy for stomach cancer. On June 18, 2003, after the surgery but prior to surgery to repair a hernia, he signed an arbitration agreement. During the hernia surgery, his bowel was punctured. Following a third surgery, it was discovered that Mann had liver cancer; he died on August 27, 2003. A wrongful death action was filed on April 15, 2004. A motion to compel was filed on May 19, 2004, based on the agreement signed prior to the second surgery. Plaintiffs argued that Mann did not enter into the agreement knowingly, voluntarily, and intelligently and that, even if he did, the agreement would not bind them as wrongful death beneficiaries. The trial court entered an order on February 24, 2005, finding that the agreement was one of adhesion and was unconscionable. Plaintiff argued that the procedure for which the agreement was signed was the hernia operation; the court in reviewing the agreement found that it covered “any dispute, claim or controversy arising out of or relating to the performance of medical services.” Regarding whether it was unconscionable, the court found that the patient’s inability to read did not render it invalid. Without reaching whether the inability to read made the explanation suspect, the court noted there was an explanation of the arbitration provision in the agreement and that it was headed by notice in all bold, all-capital text. “The claim of a lack of voluntariness fails for several reasons. First, Mann initialed on the second page of the agreement next to the term stating, “[p]atient is not in need of emergency care or under immediate stress.” Second, the agreement provides for rescission within fifteen days of signing the agreement, and Mann had nineteen days before his surgery. Additionally, the agreement states, “[b]efore signing the Agreement the Patient may make written changes in the Arbitration Agreement if they so desire and present these to the Clinic for approval.” The agreement was not substantively unconscionable because it presented Mann with a fair forum to raise disputes, did not limit his legal rights or the Defendants’ liability. Other arguments made at the appellate level were rejected because they were not raised with the trial court. The court found that the agreement was not procedurally or substantively unconscionable. Because a wrongful death action is only allowed to bring the claims that the decedent could have brought if he had survived, the heirs were bound by the agreement. Decided: August 31, 2006.

Note: The agreement provided that: “[a]ll parties agree that their relationship affects interstate commerce and that this Agreement shall be governed by the Federal Arbitration Act.”

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