Bill Text: FL S2034 | 2010 | Regular Session | Introduced
Bill Title: Arbitration Agreements/Medical Negligence Claims [SPSC]
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2010-04-30 - Died in Committee on Health Regulation [S2034 Detail]
Download: Florida-2010-S2034-Introduced.html
Florida Senate - 2010 SB 2034
By Senator Wise
5-00836C-10 20102034__
1 A bill to be entitled
2 An act relating to arbitration agreements governing
3 certain medical negligence claims; creating s.
4 682.025, F.S.; defining terms; providing that
5 arbitration agreements written in conformity with the
6 Florida Arbitration Code are consistent with the
7 public policy of this state; providing that an
8 arbitration agreement that violates the requirements
9 of the Florida Arbitration Code is voidable at the
10 option of the consumer until the initiation of
11 arbitration; prohibiting an arbitration agreement from
12 restricting or abolishing any substantive or due
13 process right or restricting in any way damages or
14 remedies available to a patient or nursing home
15 resident; requiring each arbitration agreement to
16 include a provision for selecting arbitrators by
17 mutual agreement of the patient or nursing home
18 resident and the health care provider; requiring the
19 court to appoint arbitrators who are acceptable to
20 both parties if the parties are unable to reach an
21 agreement for selecting the arbitrators; requiring the
22 provider to explain the pre-dispute agreement in
23 detail to the consumer; providing that the pre-dispute
24 agreement may be rescinded at any time before the
25 initiation of arbitration by the consumer or the
26 provider by notifying the other in writing of the
27 recession; requiring each pre-dispute agreement and
28 post-dispute agreement to contain certain specified
29 provisions; requiring that the provider give a copy of
30 the pre-dispute agreement to the patient or nursing
31 home resident; prohibiting a health care provider from
32 refusing to serve a patient if the patient declines to
33 sign an arbitration agreement or chooses to rescind
34 the arbitration agreement; prohibiting a health care
35 provider from presenting arbitration agreements to
36 patients under certain circumstances; requiring a
37 provider to give a patient a specified period of time
38 to review the post-dispute agreement and to consult an
39 attorney; providing an effective date.
40
41 WHEREAS, some medical malpractice insurers encourage health
42 care providers to use arbitration agreements as a condition of
43 providing medical malpractice insurance to health care
44 providers, and
45 WHEREAS, some nursing homes and health care providers
46 require patients and nursing home residents to execute
47 arbitration agreements prior to the delivery of services and
48 medical care, and
49 WHEREAS, many insurance plans restrict the choice patients
50 have in choosing health care providers and nursing homes,
51 leaving patients with no ability to fairly negotiate a contract
52 for services, and
53 WHEREAS, the Legislature created a comprehensive statutory
54 scheme for health care providers in chapter 766, F.S., and for
55 nursing homes in chapter 400, F.S., to ensure the availability
56 of health care services in Florida by stabilizing the
57 availability of liability insurance by statutorily governing the
58 rights of patients and duties of health care providers and
59 nursing homes in a comprehensive way, and
60 WHEREAS, contracts for services that change the rights of
61 the parties affect the stability of the insurance rates and the
62 health care system and services that are overseen and regulated
63 by the state of Florida, and
64 WHEREAS, the Legislature intends that an arbitration
65 agreement be a voluntary agreement between a patient and a
66 health care provider or nursing home, and not a prerequisite to
67 medical services or care, and
68 WHEREAS, the Legislature intends that medical malpractice
69 insurers not require health care providers or others to require
70 the use of arbitration agreements without certain safeguards
71 that are designed to protect patients’ and nursing home
72 residents’ rights, and
73 WHEREAS, the Legislature intends that health care providers
74 and nursing homes not require consumers and patients to sign any
75 contract for services that changes the rights of the consumer or
76 patient as provided in chapter 766 or chapter 400, F.S., or that
77 requires a pre-dispute arbitration in advance of providing care,
78 NOW, THEREFORE,
79
80 Be It Enacted by the Legislature of the State of Florida:
81
82 Section 1. Section 682.025, Florida Statutes, is created to
83 read:
84 682.025 Contracts for medical services and nursing home
85 care; arbitration agreements.—
86 (1) As used in this section, the term:
87 (a) “Consumer” means a patient of a provider or a nursing
88 home resident. The term includes a legal guardian of the
89 consumer or any other person who is legally authorized to enter
90 into a pre-dispute agreement or post-dispute agreement with a
91 provider on behalf of a consumer.
92 (b) “Dispute” means a medical negligence claim under
93 chapter 766 or a claim against a nursing home pursuant to the
94 common law, s. 400.023, or s. 400.0233.
95 (c) “Provider” means a health care facility licensed under
96 chapter 395, a health care practitioner as defined in s.
97 456.001, or a nursing home facility licensed under part II of
98 chapter 400.
99 (d) “Pre-dispute agreement” means an arbitration agreement
100 executed by a consumer and a provider before the occurrence of
101 events forming the basis of a dispute.
102 (e) “Post-dispute agreement” means an arbitration agreement
103 executed by a consumer and a provider after the occurrence of
104 events forming the basis of a dispute.
105 (2) Any pre-dispute agreement or post-dispute agreement
106 between a consumer and a provider which conforms to this chapter
107 is enforceable and consistent with the public policy of this
108 state. An arbitration agreement that violates the requirements
109 of this chapter is voidable at the option of the consumer until
110 the initiation of arbitration.
111 (3) A pre-dispute agreement or post-dispute agreement may
112 not restrict or abolish any substantive or due process right or
113 restrict in any way the damages or remedies available to the
114 consumer.
115 (4) A pre-dispute agreement or post-dispute agreement must
116 provide an opportunity to select the arbitrators by mutual
117 agreement of the consumer and the provider after the arbitration
118 has been initiated. The pre-dispute agreement and the post
119 dispute agreement may not restrict the panel from which the
120 arbitrator is selected. The court shall appoint one or more
121 arbitrators who are acceptable to the consumer and provider if
122 the consumer and the provider are unable to reach an agreement
123 selecting the arbitrator.
124 (5)(a) Each pre-dispute agreement must be explained in
125 detail to the consumer by the provider.
126 (b) A pre-dispute agreement may be rescinded at any time
127 before the initiation of arbitration by the consumer or the
128 provider by notifying the other in writing of the recession.
129 (c) The pre-dispute agreement must:
130 1. Include the following provision in the arbitration
131 agreement:
132
133 It is understood that any dispute relating to
134 negligence or problems with care, that is as to
135 whether any services rendered under this agreement
136 were unnecessary or unauthorized or were improperly,
137 negligently, or incompetently rendered, will be
138 determined by submission to arbitration as provided by
139 the law of this state, and not by a lawsuit or resort
140 to court process except as allowed by the law of this
141 state for judicial review of arbitration agreements.
142 Both parties to this contract, by entering into it,
143 are foregoing their constitutional right to have the
144 dispute decided in a court of law before a jury, and
145 instead are accepting the use of arbitration. The
146 consumer has the right to seek legal counsel
147 concerning this agreement and has the right to rescind
148 this agreement by written notice to the provider at
149 any time before the beginning of the arbitration.
150
151 2. Be in a separate document apart from other documents
152 provided to the consumer by the provider and be clearly and
153 conspicuously identified as an arbitration agreement.
154 3. Include the signature of an individual who has witnessed
155 the provider’s explanation of the arbitration agreement to the
156 consumer.
157 4. Include, immediately before the signature line provided
158 for the consumer, the following statement in at least 16-point
159 bold red type:
160
161 NOTICE: BY SIGNING THIS ARBITRATION AGREEMENT, YOU ARE
162 AGREEING TO HAVE ANY DISPUTE DECIDED BY A NEUTRAL
163 ARBITRATOR AND YOU ARE GIVING UP YOUR CONSTITUTIONAL
164 RIGHT TO A JURY OR COURT TRIAL.
165
166 YOU HAVE THE RIGHT TO CONSULT WITH AN ATTORNEY
167 REGARDING THIS AGREEMENT. YOU HAVE THE RIGHT TO
168 RESCIND THIS AGREEMENT IN WRITING AT ANY TIME BEFORE
169 BEGINNING AN ARBITRATION PROCEEDING.
170
171 A PROVIDER MAY NOT REFUSE TO PROVIDE SERVICES TO YOU
172 SOLELY BECAUSE YOU REFUSED TO SIGN THE ARBITRATION
173 AGREEMENT OR RESCINDED AN ARBITRATION AGREEMENT.
174
175 (d) The provider must give a copy of the pre-dispute
176 agreement to the consumer at the time it is signed by the
177 consumer and representative of the provider.
178 (e) A provider may not refuse to provide services to any
179 consumer solely because the consumer refused to sign the pre
180 dispute agreement or exercised the right of rescission.
181 (f) A provider may not submit the pre-dispute agreement to
182 a consumer for approval if the consumer’s medical condition
183 requires emergency treatment services and care as defined by s.
184 395.002 or the condition prevents the consumer from making a
185 rational decision whether or not to execute the pre-dispute
186 agreement.
187 (6)(a) A provider must give the consumer 72 hours to review
188 a post-dispute agreement and to consult with an attorney, if
189 necessary, before signing the post-dispute agreement.
190 (b) The post-dispute agreement must:
191 1. Be in a separate document apart from other documents
192 provided to the consumer by the provider and be clearly and
193 conspicuously identified as an arbitration agreement.
194 2. Include, immediately before the signature line provided
195 for the consumer, the following statement in at least 16-point
196 bold red type:
197
198 NOTICE: BY SIGNING THIS ARBITRATION AGREEMENT, YOU ARE
199 AGREEING TO HAVE A DISPUTE DECIDED BY A NEUTRAL
200 ARBITRATOR AND YOU ARE GIVING UP YOUR CONSTITUTIONAL
201 RIGHT TO A JURY OR COURT TRIAL.
202
203 YOU HAVE THE RIGHT TO REVIEW THIS AGREEMENT FOR 72
204 HOURS BEFORE SIGNING THE ARBITRATION AGREEMENT AND TO
205 CONSULT WITH AN ATTORNEY REGARDING THE ARBITRATION
206 AGREEMENT IF YOU BELIEVE IT NECESSARY TO DO SO.
207 Section 2. This act shall take effect July 1, 2010.
