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to explain the pre-dispute agreement in 23 detail to the consumer; providing that the pre-dispute 24 agreement may be rescinded at any time before the 25 initiation of arbitration by the consumer or the 26 provider by notifying the other in writing of the 27 recession; requiring each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.