HB 1529
1
A bill to be entitled
2An act relating to arbitration agreements governing
3certain medical negligence claims; creating s. 682.025,
4F.S.; defining terms; providing that arbitration
5agreements written in conformity with the Florida
6Arbitration Code are consistent with the public policy of
7this state; providing that an arbitration agreement that
8violates the requirements of the Florida Arbitration Code
9is voidable at the option of the consumer until the
10initiation of arbitration; prohibiting an arbitration
11agreement from restricting or abolishing any substantive
12or due process right or restricting in any way damages or
13remedies available to a patient or nursing home resident;
14requiring each arbitration agreement to include a
15provision for selecting arbitrators by mutual agreement of
16the patient or nursing home resident and the health care
17provider; requiring the court to appoint arbitrators who
18are acceptable to both parties if the parties are unable
19to reach an agreement for selecting the arbitrators;
20requiring the provider to explain the pre-dispute
21agreement in detail to the consumer; providing that the
22pre-dispute agreement may be rescinded at any time before
23the initiation of arbitration by the consumer or the
24provider by notifying the other in writing of the
25recession; requiring each pre-dispute agreement and post-
26dispute agreement to contain certain specified provisions;
27requiring that the provider give a copy of the pre-dispute
28agreement to the patient or nursing home resident;
29prohibiting a health care provider from refusing to serve
30a patient if the patient declines to sign an arbitration
31agreement or chooses to rescind the arbitration agreement;
32prohibiting a health care provider from presenting
33arbitration agreements to patients under certain
34circumstances; requiring a provider to give a patient a
35specified period of time to review the post-dispute
36agreement and to consult an attorney; providing an
37effective date.
38
39 WHEREAS, some medical malpractice insurers encourage health
40care providers to use arbitration agreements as a condition of
41providing medical malpractice insurance to health care
42providers, and
43 WHEREAS, some nursing homes and health care providers
44require patients and nursing home residents to execute
45arbitration agreements prior to the delivery of services and
46medical care, and
47 WHEREAS, many insurance plans restrict the choice patients
48have in choosing health care providers and nursing homes,
49leaving patients with no ability to fairly negotiate a contract
50for services, and
51 WHEREAS, the Legislature created a comprehensive statutory
52scheme for health care providers in chapter 766, F.S., and for
53nursing homes in chapter 400, F.S., to ensure the availability
54of health care services in Florida by stabilizing the
55availability of liability insurance by statutorily governing the
56rights of patients and duties of health care providers and
57nursing homes in a comprehensive way, and
58 WHEREAS, contracts for services that change the rights of
59the parties affect the stability of the insurance rates and the
60health care system and services that are overseen and regulated
61by the State of Florida, and
62 WHEREAS, the Legislature intends that an arbitration
63agreement be a voluntary agreement between a patient and a
64health care provider or nursing home, and not a prerequisite to
65medical services or care, and
66 WHEREAS, the Legislature intends that medical malpractice
67insurers not require health care providers or others to require
68the use of arbitration agreements without certain safeguards
69that are designed to protect patients' and nursing home
70residents' rights, and
71 WHEREAS, the Legislature intends that health care providers
72and nursing homes not require consumers and patients to sign any
73contract for services that changes the rights of the consumer or
74patient as provided in chapter 766 or chapter 400, F.S., or that
75requires a pre-dispute arbitration in advance of providing care,
76NOW, THEREFORE,
77
78Be It Enacted by the Legislature of the State of Florida:
79
80 Section 1. Section 682.025, Florida Statutes, is created
81to read:
82 682.025 Contracts for medical services and nursing home
83care; arbitration agreements.-
84 (1) As used in this section, the term:
85 (a) "Consumer" means a patient of a provider or a nursing
86home resident. The term includes a legal guardian of the
87consumer or any other person who is legally authorized to enter
88into a pre-dispute agreement or post-dispute agreement with a
89provider on behalf of a consumer.
90 (b) "Dispute" means a medical negligence claim under
91chapter 766 or a claim against a nursing home pursuant to the
92common law, s. 400.023, or s. 400.0233.
93 (c) "Provider" means a health care facility licensed under
94chapter 395, a health care practitioner as defined in s.
95456.001, or a nursing home facility licensed under part II of
96chapter 400.
97 (d) "Pre-dispute agreement" means an arbitration agreement
98executed by a consumer and a provider before the occurrence of
99events forming the basis of a dispute.
100 (e) "Post-dispute agreement" means an arbitration
101agreement executed by a consumer and a provider after the
102occurrence of events forming the basis of a dispute.
103 (2) Any pre-dispute agreement or post-dispute agreement
104between a consumer and a provider which conforms to this chapter
105is enforceable and consistent with the public policy of this
106state. An arbitration agreement that violates the requirements
107of this chapter is voidable at the option of the consumer until
108the initiation of arbitration.
109 (3) A pre-dispute agreement or post-dispute agreement may
110not restrict or abolish any substantive or due process right or
111restrict in any way the damages or remedies available to the
112consumer.
113 (4) A pre-dispute agreement or post-dispute agreement must
114provide an opportunity to select the arbitrators by mutual
115agreement of the consumer and the provider after the arbitration
116has been initiated. The pre-dispute agreement and the post-
117dispute agreement may not restrict the panel from which the
118arbitrator is selected. The court shall appoint one or more
119arbitrators who are acceptable to the consumer and provider if
120the consumer and the provider are unable to reach an agreement
121selecting the arbitrator.
122 (5)(a) Each pre-dispute agreement must be explained in
123detail to the consumer by the provider.
124 (b) A pre-dispute agreement may be rescinded at any time
125before the initiation of arbitration by the consumer or the
126provider by notifying the other in writing of the recession.
127 (c) The pre-dispute agreement must:
128 1. Include the following provision in the arbitration
129agreement:
130
131It is understood that any dispute relating to
132negligence or problems with care, that is as to
133whether any services rendered under this agreement
134were unnecessary or unauthorized or were improperly,
135negligently, or incompetently rendered, will be
136determined by submission to arbitration as provided by
137the law of this state, and not by a lawsuit or resort
138to court process except as allowed by the law of this
139state for judicial review of arbitration agreements.
140Both parties to this contract, by entering into it,
141are foregoing their constitutional right to have the
142dispute decided in a court of law before a jury, and
143instead are accepting the use of arbitration. The
144consumer has the right to seek legal counsel
145concerning this agreement and has the right to rescind
146this agreement by written notice to the provider at
147any time before the beginning of the arbitration.
148
149 2. Be in a separate document apart from other documents
150provided to the consumer by the provider and be clearly and
151conspicuously identified as an arbitration agreement.
152 3. Include the signature of an individual who has
153witnessed the provider's explanation of the arbitration
154agreement to the consumer.
155 4. Include, immediately before the signature line provided
156for the consumer, the following statement in at least 16-point
157bold red type:
158
159NOTICE: BY SIGNING THIS ARBITRATION AGREEMENT, YOU ARE
160AGREEING TO HAVE ANY DISPUTE DECIDED BY A NEUTRAL
161ARBITRATOR AND YOU ARE GIVING UP YOUR CONSTITUTIONAL
162RIGHT TO A JURY OR COURT TRIAL.
163
164YOU HAVE THE RIGHT TO CONSULT WITH AN ATTORNEY
165REGARDING THIS AGREEMENT. YOU HAVE THE RIGHT TO
166RESCIND THIS AGREEMENT IN WRITING AT ANY TIME BEFORE
167BEGINNING AN ARBITRATION PROCEEDING.
168
169A PROVIDER MAY NOT REFUSE TO PROVIDE SERVICES TO YOU
170SOLELY BECAUSE YOU REFUSED TO SIGN THE ARBITRATION
171AGREEMENT OR RESCINDED AN ARBITRATION AGREEMENT.
172
173 (d) The provider must give a copy of the pre-dispute
174agreement to the consumer at the time it is signed by the
175consumer and representative of the provider.
176 (e) A provider may not refuse to provide services to any
177consumer solely because the consumer refused to sign the pre-
178dispute agreement or exercised the right of rescission.
179 (f) A provider may not submit the pre-dispute agreement to
180a consumer for approval if the consumer's medical condition
181requires emergency treatment services and care as defined by s.
182395.002 or the condition prevents the consumer from making a
183rational decision whether or not to execute the pre-dispute
184agreement.
185 (6)(a) A provider must give the consumer 72 hours to
186review a post-dispute agreement and to consult with an attorney,
187if necessary, before signing the post-dispute agreement.
188 (b) The post-dispute agreement must:
189 1. Be in a separate document apart from other documents
190provided to the consumer by the provider and be clearly and
191conspicuously identified as an arbitration agreement.
192 2. Include, immediately before the signature line provided
193for the consumer, the following statement in at least 16-point
194bold red type:
195
196NOTICE: BY SIGNING THIS ARBITRATION AGREEMENT, YOU ARE
197AGREEING TO HAVE A DISPUTE DECIDED BY A NEUTRAL
198ARBITRATOR AND YOU ARE GIVING UP YOUR CONSTITUTIONAL
199RIGHT TO A JURY OR COURT TRIAL.
200
201YOU HAVE THE RIGHT TO REVIEW THIS AGREEMENT FOR 72
202HOURS BEFORE SIGNING THE ARBITRATION AGREEMENT AND TO
203CONSULT WITH AN ATTORNEY REGARDING THE ARBITRATION
204AGREEMENT IF YOU BELIEVE IT NECESSARY TO DO SO.
205 Section 2. This act shall take effect July 1, 2010.
CODING: Words stricken are deletions; words underlined are additions.