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   24         agreement may be rescinded at any time before the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         682.025Contracts 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.