Arbitration of Medical Malpractice Disputes

• Publication year: 1989
• Pages: 897
• Citation: Vol. 05 No. 1989 Pg. 897

18 Colo.Law. 897 Colorado Lawyer 1989.

1989, May, Pg. 897. Arbitration of Medical Malpractice Disputes

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Arbitration of Medical Malpractice Disputes

by Curtis W. Shortridge

As part of its "tort reform" legislation package in 1988, the Colorado legislature enacted a law permitting the voluntary arbitration of medical malpractice claims. Codified at CRS § 13-64-403 as part of the Health Care Availability Act ("Act"), this new legislation took effect July 1, 1988, and applies to agreements for medical services containing a binding arbitration provision on or after that date.

This article reviews the Act and looks at cases arising from similar statutes in other states. In addition, the results of arbitrations under the Michigan statute (a widely studied program) are reviewed and compared with one study of litigated medical malpractice cases during the same period.

The Colorado Statute

The Act encourages patients and their health care providers to enter into agreements to arbitrate any professional negligence dispute. It also includes specific provisions limiting the scope of such agreements. However, the Act prohibits medical malpractice insurers from requiring health care providers to utilize arbitration agreements as a condition of providing medical malpractice insurance.

The Act also states that any agreement for provision of medical services that contains a clause for binding arbitration of a medical malpractice dispute will not be deemed contrary to the public policy of Colorado as long as it conforms

to the provisions of the Act. The exception to this is where the arbitration agreement may be declared invalid by a court for certain reasons enumerated in the Act.(fn1) These include a showing by "clear and convincing evidence" that

1) the agreement fails to meet the standards for such agreements as established by the Act;

2) the execution of the agreement was induced by fraud;

3) "[t]he 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

4) the patient executing the agreement was unable to communicate effectively in spoken and written English (not contrary to public policy if the agreement is written in his or her native language).

The Act expresses the intent of the General Assembly that an arbitration agreement covered by the Act be voluntary. The patient has the right to rescind the arbitration agreement by written notice to the health care provider within ninety days after the agreement has been signed by both parties. However, if the agreement was signed in contemplation of the patient being hospitalized, it may be rescinded by written notice within ninety days after the release or discharge of the patient. Where the arbitration agreement covers medical services to a minor, it is not subject to disaf-firmation by the minor if signed by the minor's parent or legal guardian.

Notice of the right to rescission must be included in the written document containing the arbitration agreement, a copy of which must be provided to thepatient. The Act also requires that the document containing the arbitration agreement include the following language in at least 10 point, boldface type:

Note: By signing this agreement you are agreeing to have any issue of medical malpractice decided by neutral binding arbitration rather than by...