(1) It is the intent of the general assembly that an arbitration agreement be a voluntary agreement between a patient and a health care provider and no medical malpractice insurer shall require a health care provider to utilize arbitration agreements as a condition of providing medical malpractice insurance to such health care provider. Making the use of arbitration agreements a condition to the provision of medical malpractice insurance shall constitute an unfair insurance practice and shall be subject to the provisions, remedies, and penalties prescribed in part 11 of article 3 of title 10, C.R.S.
(1.5) Exemplary damages may be awarded in any arbitration proceeding held pursuant to this section in accordance with section 13-21-102 (1) to (3) and (6). Any award of exemplary damages in a proceeding held pursuant to this section may be modified by the district court upon petition to the district court alleging that the award of such damages was either excessive or inadequate.
(2) Any agreement for the provision of medical services which contains a provision for binding arbitration of any dispute as to professional negligence of a health care provider that conforms to the provisions of this section shall not be deemed contrary to the public policy of this state, except as provided in subsection (10) of this section.
(3) Any such agreement shall have the following statement set forth as part of the agreement: "It is understood that any claim of medical malpractice, including any claim that medical services were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered or omitted, will be determined by submission to binding arbitration in accordance with the provisions of part 2 of article 22 of this title, and not by a lawsuit or resort to court process except as Colorado law provides for judicial review of arbitration proceedings. The patient has the right to seek legal counsel concerning this agreement, and has the right to rescind this agreement by written notice to the physician within ninety days after the agreement has been signed and executed by both parties unless said agreement was signed in contemplation of the patient being hospitalized, in which case the agreement may be rescinded by written notice to the physician within ninety days after release or discharge from the hospital or other health care institution. Both parties to this agreement, by entering into it, have agreed to the use of binding arbitration in lieu of having any such dispute decided in a court of law before a jury."
(4) Immediately preceding the signature lines for such an agreement, the following notice shall be printed in at least ten-point, bold-faced type:
NOTE: BY SIGNING THIS AGREEMENT YOU
ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL
BINDING ARBITRATION RATHER THAN BY A JURY OR COURT TRIAL.
YOU HAVE THE RIGHT TO SEEK LEGAL COUNSEL AND YOU HAVE THE RIGHT TO RESCIND THIS AGREEMENT WITHIN NINETY DAYS FROM THE DATE OF SIGNATURE BY BOTH PARTIES UNLESS THE AGREEMENT WAS SIGNED IN CONTEMPLATION OF HOSPITALIZATION IN WHICH CASE YOU HAVE NINETY DAYS AFTER DISCHARGE OR RELEASE FROM THE HOSPITAL TO RESCIND THE AGREEMENT.
NO HEALTH CARE PROVIDER SHALL WITHHOLD THE PROVISION OF EMERGENCY MEDICAL SERVICES TO ANY PERSON BECAUSE OF THAT PERSON'S FAILURE OR REFUSAL TO SIGN AN AGREEMENT CONTAINING A PROVISION FOR BINDING ARBITRATION OF ANY DISPUTE ARISING AS TO PROFESSIONAL NEGLIGENCE OF THE PROVIDER.
NO HEALTH CARE PROVIDER SHALL REFUSE TO PROVIDE MEDICAL CARE SERVICES TO ANY PATIENT SOLELY BECAUSE SUCH PATIENT REFUSED TO SIGN SUCH AN AGREEMENT OR EXERCISED THE NINETY-DAY RIGHT OF RESCISSION.
(5) Once signed, the agreement shall govern all subsequent provision of medical services for which the agreement was signed until or unless rescinded by written notice. Written notice of such rescission may be given by a guardian or conservator of the patient if the patient is incapacitated or a minor. Where the agreement is one for medical services to a minor, it shall not be subject to disaffirmation by the minor if signed by the minor's parent or legal guardian.
(6) The patient shall be provided with a written copy of any agreement subject to the provisions of this section at the time that it is signed by the parties.
(7) No health care provider shall refuse to provide medical care services to any patient solely because such patient refused to sign such an agreement or exercised the ninety-day right of rescission.
(8) No health care provider shall withhold the provision of emergency medical services to any person because of that person's failure or refusal to sign an agreement containing a provision for binding arbitration of any dispute arising as to professional negligence of the provider.
(9) If a health care provider refuses to provide medical care services to any patient in violation of subsection (7) of this section or withholds the provision of emergency medical services to any person in violation of subsection (8) of this section or fails to comply with the requirements of subsection (3) or (4) or both of this section, such refusal or withholding of services shall constitute unprofessional conduct as such term is used under the relevant licensing statute governing that particular care provider, and the appropriate authority which conducts disciplinary proceedings relating to such health care provider shall consider and take appropriate disciplinary action against such health care provider as provided under the relevant licensing statute.
(10) Even where it complies with the provisions of this section, such an agreement may nevertheless be declared invalid by a court if it is shown by clear and convincing evidence that:
(a) The agreement failed to meet the standards for such agreements as specified in this section; or
(b) The execution of the agreement was induced by fraud; or
(c) The patient executed the agreement as a direct result of the willful or negligent disregard of the patient's right to refrain from such execution; or
(d) The patient executing the agreement was not able to communicate effectively in spoken and written English, unless the agreement is written in his native language.
(11) No such agreement may be submitted to a patient for approval when the patient's condition prevents the patient from making a rational decision whether or not to execute such an agreement.
(12) For the purposes of this section:
(a) (I) "Health care provider" means any person licensed or certified by the state of Colorado to deliver health care and any clinic, health dispensary, or health facility licensed by the state of Colorado. The term includes any professional corporation or other professional entity comprised of such health care providers as permitted by the laws of this state.
(II) (A) Nothing in this paragraph (a) shall be construed to permit a professional service corporation, as described in section 12-36-134, C.R.S., to practice medicine.
(B) Nothing in this paragraph (a) shall be construed to otherwise create an exception to the corporate practice of medicine doctrine.
(b) "Professional negligence" means a negligent act or omission by a health care provider in the rendering of professional services, which act or omission is the proximate cause of personal injury or wrongful death, as long as such services are within the scope of services for which the provider is licensed.
Source: L. 88: Entire article added, p. 620, 1, effective July 1. L. 89: (1.5) added, p. 763, 3, effective July 1. L. 95: (1.5) amended, p. 16, 7, effective March 9. L. 2003: (12)(a) amended, p. 1600, 5, effective July 1. L. 2004: (3) amended, p. 1731, 2, effective August 4.
Cross references: For the legislative declaration contained in the 2003 act amending subsection (12)(a), see section 1 of chapter 240, Session Laws of Colorado 2003.
The plain language of subsection (4) does not dictate the required level of compliance, strict or substantial. Colorow Health Care, LLC v. Fischer, 2018 CO 52M, 420 P.3d 259.
Substantial, not strict, compliance with the typeface requirements in subsection (4) is consistent with the specific purpose of this section (ensuring that patients enter arbitration agreements voluntarily) and the general purpose of the HCAA (keeping medical malpractice costs low). Colorow Health Care, LLC v. Fischer, 2018 CO 52M, 420 P.3d 259.
Based on the three-factor test in Bickel v. City of Boulder, 885 P.2d 215 (Colo. 1994), arbitration agreement between patient and health care provider that was the proper sized font but not boldface type substantially complied with subsection (4): (1) the extent of the health care provider's noncompliance was minimal; (2) the purpose behind the section--voluntariness--was achieved; and (3) the provider made a good faith effort to comply with the statute. Colorow Health Care, LLC v. Fischer, 2018 CO 52M, 420 P.3d 259.
Law reviews. For article, "Arbitration of Medical Malpractice Disputes", see 18 Colo. Law. 897 (1989). For article, "Mandatory Arbitration and the Medical Malpractice Plaintiff", see 27 Colo. Law. 77 (May 1998).
When an arbitration provision does not comply with subsections (3) and (4), these subsections govern the arbitration provision and are not preempted by the Federal Arbitration Act. Although the arbitration provision in the HMO contract does extend to wrongful death actions filed by a member's non-party spouse, the respondent is not bound by the arbitration provision because it does not comply with subsections (3) and (4). The Colorado Health Care Availability Act governs the arbitration provision because the McCarran-Ferguson Act exempts this provision from federal preemption by the Federal Arbitration Act. Allen v. Pacheco, 71 P.3d 375 (Colo. 2003) (disagreeing with the reasoning of the federal district court in Morrison v. Colo. Permanente Med. Group, annotated below).
Subsections (3) and (4) are inconsonant with, and therefore preempted by, the Federal Arbitration Act. The Colorado Uniform Arbitration Act, 13-22-210 et seq., places no text or form limitations on arbitration agreements. Thus, the effect of the provisions in subsection (3) and (4) is to place arbitration clauses in medical services agreements in a class apart not only from any contract but also from all other arbitration agreements. By doing so, the Health Care Availability Act singularly limits their validity. Morrison v. Colo. Permanente Med. Group, 983 F. Supp. 937 (D. Colo. 1997).
If dispute resolution procedures include arbitration of professional negligence claims against health care providers who provide medical services, the patient must be notified of this fact in a manner consistent with the Health Care Availability Act requirements. Evans v. Colo. Permanente Med. Group, P.C., 902 P.2d 867 (Colo. App. 1995), aff'd, 926 P.2d 1218 (Colo. 1996).
Fact that agreement to arbitrate was obtained by a health maintenance organization on behalf of a doctor and nurses does not create a conflict with the Colorado Health Maintenance Organization Act; the Health Care Availability Act applies to any agreement for the provision of medical services by a health care provider. Evans v. Colo. Permanente Med. Group, P.C., 902 P.2d 867 (Colo. App. 1995), aff'd, 926 P.2d 1218 (Colo. 1996).
A doctor, nurses, and a professional entity comprised of physicians are each a "health care provider" within the meaning of subsection (12). Evans v. Colo. Permanente Med. Group, P.C., 902 P.2d 867 (Colo. App. 1995), aff'd in part and rev'd in part on other grounds, 926 P.2d 1218 (Colo. 1996).
Providing a copy of the agreement to the attorney-in-fact who signed the agreement on behalf of the patient satisfies subsection (6)'s requirement that the patient receive a copy of the agreement. Moffett v. Life Care Ctrs. of Am., 187 P.3d 1140 (Colo. App. 2008), aff'd on other grounds, 219 P.3d 1068 (Colo. 2009).
A person who holds a medical durable power of attorney, in selecting a long-term health care facility, has the power to execute applicable admissions forms, including arbitration agreements, unless that power is restricted by the principal. Subsection (11) may not be construed in isolation from statutes governing powers of attorney. Moffett v. Life Care Ctrs. of Am., 187 P.3d 1140 (Colo. App. 2008), aff'd, 219 P.3d 1068 (Colo. 2009).
Section demands strict, not substantial, compliance, including the requirements for bold-face type and point size. Defendant's arbitration agreement did not include the requisite bold-face type and exact wording set forth in subsection (4) and thus was properly declared invalid. Fischer v. Colorow Health Care, LLC, 2016 COA 130, __ P.3d __.