ROBERT E. KING and wife, JO ANN O'NEAL
MICHAEL S. BRYANT, M.D. and VILLAGE SURGICAL ASSOCIATES, P.A.
discretionary review pursuant to N.C. G.S. § 7A-31 of a
unanimous decision of the Court of Appeals, 235 N.C.App. 218,
763 S.E.2d 338 (2014), affirming an order entered on 10 May
2013 by Judge Lucy N. Inman in Superior Court, Cumberland
County. After hearing oral argument on 18 May 2015 and
receiving additional findings of fact following the entry of
a remand order on 19 February 2016, the Court ordered the
parties to submit supplemental briefs. Additional issues
raised in the supplemental briefs heard on 31 August 2016.
Beaver, Courie, Sternlicht, Hearp & Broadfoot, P.A., by
Mark A. Sternlicht, for plaintiff-appellees.
Walker, Allen, Grice, Ammons & Foy, L.L.P., by Robert D.
Walker, Jr., O. Drew Grice, Jr., and Alexandra L. Couch, for
Zaytoun Law Firm, PLLC, by Matthew D. Ballew, and Patterson
Harkavy LLP, by Burton Craige, for North Carolina Advocates
for Justice, amicus curiae.
case arises out of a medical malpractice action that
plaintiffs, Robert E. King and his wife, Jo Ann O'Neal,
brought against defendants, Michael S. Bryant, M.D., and
Village Surgical Associates, P.A. According to the
allegations contained in plaintiffs' complaint, Mr. King
was scheduled to undergo a bilateral inguinal hernia repair
to be performed by Dr. Bryant at the Fayetteville Ambulatory
Surgery Center on 14 May 2009. At the time of his initial
appointment with Dr. Bryant, Mr. King was presented with an
Agreement to Alternative Dispute Resolution (arbitration
agreement) that defendants routinely presented to new
patients along with other documents prior to the first
occasion on which a patient met with a physician. The
arbitration agreement provided that:
In accordance with the terms of the Federal Arbitration Act,
9 USC 1-16, I agree that any dispute arising out of or
related to the provision of healthcare services by me, by
Village Surgical Associates, PA, or its employees, physician
members, and agents shall be subject to final and binding
resolution through private arbitration.
The parties to this Agreement shall agree upon three
Arbitrators and at least one arbitrator of the three shall
be a physician licensed to practice medicine and shall be
board certified in the same specialty as the physician
party. The remaining Arbitrators either shall be licensed
to practice law in NC or licensed to practice medicine in
NC. The parties shall agree upon all rules that shall
govern the arbitration, but may be guided by the Health
Care Claim Settlement Procedures of the American
Arbitration Association, a copy of which is available to me
upon request. I understand that this agreement includes all
health care [sic] services which previously have been or
will in the future be provided to me, and that this
agreement is not restricted to those health care [sic]
services rendered in connection with any particular
treatment, office or hospital admission. I understand that
this agreement is also binding on any individual or entity
and not a precondition to receiving health care [sic]
King, a witness, and Dr. Bryant each signed the arbitration
agreement on 29 April 2009.
to the unchallenged findings of fact, a front desk employee
at Village Surgical Associates provided Mr. King with several
intake forms to complete and sign while he waited to meet Dr.
Bryant. The initial intake forms asked Mr. King to provide
personal and medical history information and to sign the
signature lines on all of the forms, including the
arbitration agreement. Mr. King stated in his affidavit that
he was then provided with a second set of documents, which
addressed insurance and payment-related issues, after he had
met with Dr. Bryant. Mr. King acknowledged that he did not
read any of the documents that he signed after his initial
meeting with Dr. Bryant and stated that he had believed them
to be "just a formality." Mr. King denied having
received a copy of the arbitration agreement on the day that
it was signed and asserted that the contents of the agreement
were not clear to him even after he had read it. Mr. King
contended that, "[i]f the agreement had been brought to
my attention and I had been told signing it was optional, I
would not have signed it."
course of the performance of the hernia repair procedure, Dr.
Bryant injured Mr. King's distal abdominal aorta,
resulting in abdominal bleeding. Although Dr. Bryant was able
to repair Mr. King's injury, the necessary remedial
procedures led to occlusion of an artery, a thromboembolism
to Mr. King's right lower leg, and acute ischemia in Mr.
King's right foot. After undergoing the performance of an
immediate revascularization at Cape Fear Valley Health
Systems for the purpose of salvaging his right leg, Mr. King
remained hospitalized until 26 May 2009. At the time of his
discharge, Mr. King continued to suffer from complications
related to his abdominal aortic injury and needed additional
treatment. As a result of the injury that he sustained during
the hernia repair procedure, Mr. King incurred unexpected
medical expenses, abdominal scarring, lost wages, numbness,
and a limited ability to use his right leg and foot.
September 2011, plaintiffs filed a complaint against
defendants in the Superior Court, Cumberland County, seeking
damages for medical malpractice. On 7 November 2011,
defendants filed a motion seeking to have further litigation
in this action stayed and the arbitration agreement that had
been entered into between Mr. King and defendants enforced
and an answer in which defendants denied the material
allegations of plaintiffs' complaint. Plaintiffs
responded to defendants' motion to stay and enforce the
arbitration agreement by arguing that:
[T]he purported agreement is not enforceable for reasons that
include but are not limited to the undue, prohibitive
financial burden that enforcement of the agreement would have
on plaintiffs by requiring the hiring of three arbitrators,
one who must be a board certified physician in the same
specialty as the defendant, Michael S. Bryant, M.D., and two
who must be attorneys or physicians licensed in North
Carolina; the inherent unfairness of requiring one arbitrator
be a member of the same profession and medical specialty as
the defendant, . . . especially in light of the absence of
any comparable requirement for an arbitrator to be similarly
affiliated with the plaintiffs . . . .
February 2012, defendants filed a motion seeking the entry of
an order compelling arbitration. On 23 March 2012, the trial
court entered an order denying defendants' motion to
enforce the arbitration agreement on the basis of conclusions
4. The Agreement to Alternative Dispute Resolution leaves
material portions open to future agreements by providing,
inter alia, that the parties shall agree upon three
arbitrators and that the parties shall agree upon all rules
that shall govern the arbitration.
5. At most, the Agreement to Alternative Dispute Resolution
is an "agreement to agree" that is indefinite and
depends on one or more future agreements. Seawell v.
Continental Cas. Co., 84 N.C.App. 277, 281, 352 S.E.2d
263, 265 (1987).
6. The Agreement to Alternative Dispute Resolution is not a
binding contract and is not enforceable.
noted an appeal to the Court of Appeals from the trial
February 2013, the Court of Appeals filed an opinion
reversing the March 2012 order and remanding this case for
further proceedings, King v. Bryant, 225 N.C.App.
340, 737 S.E.2d 802 (2013) (King I), on the grounds
"that the trial court erred in concluding the Agreement
between the parties was too indefinite to be enforced, "
id. at 345, 737 S.E.2d at 807. According to the
Court of Appeals, "there was clearly an offer to
arbitrate any dispute which arose out of Defendants'
provision of medical care, as well as an acceptance of that
offer by Mr. King." Id. at 346, 737 S.E.2d at
807. Although plaintiffs had argued before the trial court
and the Court of Appeals that the arbitration agreement was
unenforceable on unconscionability grounds, the Court of
Appeals declined to address that issue given that the trial
judge in the March 2012 order had not made the necessary
factual findings. Id. at 347, 737 S.E.2d at 808.
According to the Court of Appeals, "the trial court is
the appropriate body to determine whether the agreement is
unconscionable, " id. at 347-48, 737 S.E.2d at
808 (citation omitted), with the needed unconscionability
analysis to "be undertaken with an understanding of the
unique nature of the physician/patient relationship, "
id. at 348, 737 S.E.2d at 808. In addition, the
Court of Appeals noted that, "[u]nder North Carolina
law, fiduciary relationships create a rebuttable presumption
that the plaintiff put his trust and confidence in the
defendant as a matter of law." Id. at 349, 737
S.E.2d at 809. As a result, the Court of Appeals required
that these issues be addressed on remand. Id. at
350, 737 S.E.2d at 809.
May 2013, the trial court entered an order on remand
determining that, given the nature of the fiduciary
relationship that existed between Mr. King and defendants,
defendant Bryant "had a fiduciary duty to disclose to
his patient all facts material to their transaction."
More specifically, the trial court's May 2013 order found
as a fact that:
2. Mr. King, now 68, has no educational degree beyond high
school and his job requires little reading. He has minimal
experience reading legal documents.
3. Defendant Village Surgical Associates, P.A. ("Village
Surgical") has experience in managing patient
complaints, responding to claims of medical negligence made
by patients, and resolving disputes through arbitration.
4. On April 29, 2009, Plaintiffs visited Defendant's
office for the first time to consult with Defendant Bryant
about performing laparoscopic surgery on Plaintiff King to
repair a hernia. Plaintiff King had been referred to
Defendants by his primary care physician.
5. While Plaintiffs were waiting to meet Defendant Bryant and
consult with him about performing surgery, Defendant's
receptionist provided Plaintiff King with several intake
forms to complete and sign. Plaintiff King considered the
forms to be a formality.
6. Neither the receptionist, nor Defendant Bryant, nor any
agent of Defendants called to Plaintiff King's attention
the fact that one of the forms he was asked to sign, the
Agreement, differed from all of the other forms because it
did not concern medical information, insurance information,
or payment for the surgery, all routine for a new patient.
Nor did anyone disclose to Plaintiff King that the Agreement
sought to foreclose his access to the judicial process in the
event that any dispute arose out of or related to the surgery
to be performed by Defendant Bryant.
. . . .
8. The Agreement does not provide that by signing it, the
patient waives his or her right to a trial. The Agreement
does not include the word "jury" or
"judge" or "trial." The Agreement does
not provide that the patient can consult an attorney before
9. There is no evidence that the physician or any
agent of Defendants discussed with the patient, Plaintiff
King, any provision of the Agreement.
. . . .
11. At the time Plaintiff King signed the Agreement and
provided his medical information on intake forms, even though
he had not yet met Defendant Bryant, he was already placing
his confidence and trust in Defendants, as demonstrated by
his willingness to share his confidential medical
. . . .
14. The first, bold-faced paragraph of the Agreement is
poorly drafted, confusing, and nonsensical. For example, it
refers to the "provision of healthcare services by me,
" suggesting that "me" refers to the physician
rather than the patient.
15. The Agreement repeatedly refers to arbitration without
defining the term. The Agreement includes no mention
whatsoever of the judicial process, a trial, or a jury. The
Agreement does not disclose Defendants' intent for
Plaintiff King to waive his rights to the judicial process,
including his right to a jury trial, in the event of any
claim arising from or related to the surgery. A person of
Plaintiff King's education and experience should not
reasonably have been expected to know from the language of
the Agreement, or from any information provided to him by
Defendants, that he had a right to a jury trial to resolve
any potential dispute with his surgeon. Nor should he have
been expected to understand from the language of the
Agreement or other information provided to him by Defendants
that by signing the Agreement, he would waive his right to a
16. The last sentence of the second paragraph in the
Agreement starts with complex but complete clauses . . . and
ends with an incomplete clause . . . . A person of Plaintiff
King's education and experience should not reasonably be
expected to understand the last, tacked on, incomplete clause
to mean that he did not need to sign the Agreement in order
for Defendant Bryant to perform the surgery.
17. Plaintiff King read the Agreement after a copy was
provided to him by his attorney, and he still did not
understand its contents or the intended consequence of
18. Unlike arbitration agreements which have been upheld and
enforced in medical negligence cases, the Agreement includes
no provision allowing or recommending that the patient
consult with an ...