When you suffer injuries due to a car accident, slip and fall, or other event, you need medical care. But when you seek treatment you may be presented with an unfamiliar document to sign: a binding arbitration agreement. By signing, you commit to use binding arbitration to settle any legal claims you may want to bring against your doctor, hospital, or clinic.
Should you sign?
Binding arbitration is a form of legal dispute resolution in which the parties hire arbitrators (often retired judges or lawyers) to represent them, and a third arbitrator serves as a neutral party. Arbitration proceedings are much like a trial in that evidence is presented and a decision is made, but the decision is made by the arbitrators, not a jury. In binding arbitration, the arbitrators’ decision is legally binding and usually final.
The benefits of arbitration can include relatively speedy decision making, lower attorney costs (due to the speed of proceedings) and privacy. Traditional court proceedings are a matter of public record, but arbitration proceedings are not.
However, binding arbitration in the medical field is a relatively new and questionable development. Thanks to COVID-19, many medical practices have suffered a loss of revenue. As a result, private investors are buying struggling practices and repackaging them for sale. Binding arbitration agreements are widely embraced in the financial industry as a form of insurance against “runaway” jury verdicts. Therefore, investors reason, why not ask patients to sign them too?
Colorado’s Health Care Availability Act
In Colorado, the Health Care Availability Act (C.R.S. § 13 64 403) strictly regulates binding arbitration agreements in the field of medicine. By Colorado law, binding arbitration agreements related to medical disputes are only sanctioned when they are entered into voluntarily. No one can be forced to sign such an agreement as a condition of receiving care. Medical binding arbitration agreements must also contain very specific notifications, disclaimers, language, and formatting. Recently, a clinic’s binding arbitration agreement was deemed unenforceable because it did not include boldface type where mandated by law (Fischer v. Colorow Health Care LLC, 2016).
The Bottom Line
Back to the original question: If you are presented with one of these agreements, should you sign?
The answer will depend on your individual situation and preferences. It is best to consult with a lawyer before signing any legal document. Since it is obviously impractical to call your lawyer from a clinic waiting room, Colorado’s Health Care Availability Act gives you 90 days to rescind a medical binding arbitration agreement in writing. You may not be denied care if you rescind. The exacting language of the statute recognizes that while binding arbitration can be a useful tool in many fields, medical patients may be better served by keeping their legal options open.
Article by Molly Fuscher, Paralegal