Originally published in Arizona Attorney - December 2012.
October 2012 marked the 20th anniversary of the Arizona Supreme Court’s opinion in Broemmer v. Abortion Services of Phoenix, Ltd. In the two decades since Broemmer was decided, it has been featured in nearly a dozen legal textbooks for contracts and arbitration courses. As one scholar notes, Broemmer is historic in that it marked the first time the Arizona Supreme Court applied the “reasonable expectations” doctrine of Section 211(3) of the Restatement (Second) of Contracts to a contract that was not an insurance policy. Broemmer is part of a lineage of decisions that made Arizona a legal laboratory for the court-led implementation of Section 211(3). Despite that lineage, the authors respectfully argue that the case undermined the appropriate use of mediation and furthered Arizona’s retreat from personal responsibility in contract law.
Contractual Arbitration -
Problem 3-9 -
Melinda Kay Broemmer entered a Phoenix clinic to obtain an abortion. While she was in a visibly disturbed emotional state prior to the abortion, she signed three standard forms, one of which required that any dispute with the clinic be subject to binding arbitration by “licensed medical doctors who specialize in obstetrics/gynecology.” During the abortion, she suffered a punctured uterus that required medical treatment. If Broemmer brings a malpractice lawsuit, will the clinic be able to use the form to compel arbitration?
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