In its decision filed on September 8, 2016, the Colorado Court of Appeals (“Appellate Court”) held that in deciding the enforceability of an agreement to arbitrate under the Health Care Availability Act (“HCAA”), the test is strict compliance (rather than substantial compliance) with the textual and typographical requirements of section 13-64-403, C.R.S. 2015. Because the defendant nursing home in the case it was deciding had failed to strictly comply with the statutory requirements in its nursing home arbitration agreement, the Appellate Court affirmed the trial court’s order that denied the nursing home’s motion to compel arbitration of the Colorado nursing home negligence lawsuit filed after the death of a resident.
Section 13-64-403, C.R.S. 2015
Section 13-64-403 provides, in part: “Agreement for medical services – alternative arbitration procedures – form of agreement – right to rescind. (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 … (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unless said agreement was signed in contemplation of the patient being hospitalized, in which case the agreement may be rescinded by written notice to the physician within ninety days after release or discharge from the hospital or other health care institution.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.”
Section 13-64-403 (4) states, “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.”
The defendant nursing home’s arbitration agreement in the case the Appellate Court was deciding parroted the required language from subsection 403(3), in regular typeface, but with a few typographical errors and minor departures from the statutory text. After the subsection 403(3) text, the defendant nursing home’s arbitration agreement quoted the required language from subsection 403(4), which was capitalized and in twelve-point font, but in regular — as opposed to bold — typeface.
The Appellate Court held: “That the arbitration agreement entirely lacked bold-faced type is undisputed, and we have concluded that section 13-64-403 demands strict compliance. Therefore, clear and convincing evidence shows that the agreement violated section 13-64-403(4). And invalidating it for the lack of bold-faced type neither creates an absurd result nor violates public policy favoring arbitration. Having invalidated the agreement on this basis, we need not determine whether the agreement is also invalid because of typographical errors and minor wording discrepancies.”
Source Fischer v. Colorow Health Care, LLC, et al., 2016COA130.
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