DOLORES Y JOHNSON V HENRY FORD HOSP
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STATE OF MICHIGAN
COURT OF APPEALS
DOLORES Y. JOHNSON,
UNPUBLISHED
July 3, 2001
Plaintiff-Appellee,
v
No. 219327
Wayne Circuit Court
LC No. 93-314869-NH
HENRY FORD HOSPITAL, THOMAS FOX,
M.D., DR. TENDER, and M. LITTLE, L.P.N.,
Defendants-Appellants.
Before: Sawyer, P.J., and Griffin and O’Connell, JJ.
PER CURIAM.
Defendants appeal by right from the trial court’s entry of judgment on an arbitration
award in this medical malpractice action. We affirm.
Defendants’ two claims of error will be addressed together. Plaintiff, who claims
multiple personality disorder, alleged that defendants’ failure to render her unconscious during a
colonoscopy caused her to regress into one of her alter personalities in order to cope with revived
memories of her childhood’s alleged sexual abuse, and that her recovery took two years.
Defendants essentially claim that the arbitrator’s factual finding that plaintiff’s alter personalities
equate with her principal personality, despite finding that plaintiff’s principal personality had no
memory of the procedure, was legal error requiring reversal because the arbitrator improperly
relied on this Court’s prior opinion reversing the trial court’s grant of summary disposition for
defendants. Johnson v Henry Ford Hosp, unpublished opinion per curiam of the Court of
Appeals, issued 9/20/96 (Docket No. 181296).
We review only the legal conclusions, not factual findings, appearing on the face of an
arbitration award to determine whether, but for the legal error, a substantially different award
would have been made. Detroit Automobile Inter-Ins Exchange v Gavin, 416 Mich 407, 429,
443; 331 NW2d 418 (1982). Whether “the law of the case” applies, i.e. this Court’s summary
disposition decision in the present case, constitutes a legal question reviewable de novo, Ashker v
Ford Motor Co, 245 Mich App 1; ___ NW2d ___ (2001).
Nowhere on the face of the arbitration award does the arbitrator state that he is relying on
this Court’s prior opinion for a legal conclusion. Rather, the arbitrator’s decision that plaintiff’s
personalities equate to each other and experienced the colonoscopy was labeled a factual finding.
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We are limited to a review of the arbitration award only, where, as here, the reasons stated for the
award are in the issued arbitration opinion itself. Gavin, supra at 428-429; Dohanyos v Detrex
Corp, 217 Mich App 171, 175-176; 550 NW2d 608 (1996). Moreover, because the error
defendants point to in the award is a factual finding, it is not reviewable. Gavin, supra at 429,
443; Konal v Forlini, 235 Mich App 69, 75; 596 NW2d 630 (1999).
Even if this issue were a mixed question of law and fact, it would still be within the
province of the arbitrator’s sole discretion. Gavin, supra at 429. Defendants are actually
attacking the arbitrator’s refusal to weigh particular evidence on the existence and separation of
plaintiff’s personalities, but this was within the arbitrator’s discretion as well. Belen v Allstate
Ins Co, 173 Mich App 641, 645-646; 434 NW2d 203 (1988). This Court may not review this
arbitrator’s award even if it is against the great weight of the evidence or unsupported by
substantial evidence. Donegan v Michigan Mut Ins Co, 151 Mich App 540, 549; 391 NW2d 403
(1986).
Underlying defendants’ claim of error is their contention that this jurisdiction disapproves
of repressed memory theory as evidence of personal injury in a tort cause of action. While our
Supreme Court has held that repressed memories, as the sole evidence of a tort, cannot be used to
toll the statute of limitations under the discovery rules and disability statutes, Lemmerman v
Fealk, 449 Mich 56; 534 NW2d 695 (1995), at least one case held that where there was other
evidence of the abuse, repressed memory evidence was acceptable, Meiers-Post v Schafer, 170
Mich App 174; 427 NW2d 606 (1988). This is the case here, because plaintiff did not base her
claim of an offensive touching on repressed memory evidence. It is undisputed that defendants
performed the colonoscopy on plaintiff. Rather, plaintiff used her repressed memories as
evidence of the trauma the colonoscopy inflicted on her conscious mind, and as an explanation
why the procedure would cause emotional and mental trauma. Moreover, a witness also
described the trauma plaintiff experienced while the procedure was being performed.
Under the structured standard of review applied to arbitration awards, it was within the
arbitrator’s powers to find as fact that plaintiff’s personalities were equivalent for purposes of
finding that plaintiff sustained a redressable injury.
Affirmed.
/s/ David H. Sawyer
/s/ Richard Allen Griffin
/s/ Peter D. O’Connell
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