Bill Text: GA SB505 | 2011-2012 | Regular Session | Introduced

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Bill Title: Civil Practice; medical malpractice arbitration; substantially revise the law

Spectrum: Partisan Bill (Republican 2-0)

Status: (Introduced - Dead) 2012-02-28 - Senate Read and Referred [SB505 Detail]

Download: Georgia-2011-SB505-Introduced.html

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12 LC 29 5204ER

Senate Bill 505

By: Senators Bethel of the 54th and Hamrick of the 30th

A BILL TO BE ENTITLED
AN ACT

To amend Code Section 5-6-34 and Article 2 of Chapter 9 of Title 9 of the Official Code of Georgia Annotated, relating to judgements and rulings deemed directly appealable and medical malpractice arbitration, respectively, so as to substantially revise the law relating to arbitration of medical malpractice claims; to provide for direct appeal; to change and provide for definitions; to provide for qualifications, terms, and conditions in order for a medical malpractice arbitration agreement to be enforceable; to provide for persons other than a patient to enter into binding arbitration on behalf of a patient; to provide for construction of arbitration agreements; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Code Section 5-6-34 of the Official Code of Georgia Annotated, relating to judgments and rulings deemed directly appealable, is amended in subsection (a) by deleting "and" at the end of paragraph (10), by replacing the period with "; and" at the end of paragraph (11), and by adding a new paragraph to read as follows:

"(12) All judgments or orders refusing to recognize or enforce an arbitration agreement for medical malpractice claims as provided for in Code Section 9-9-62."

SECTION 2.

Article 2 of Chapter 9 of Title 9 of the Official Code of Georgia Annotated, relating to medical malpractice arbitration, is amended by revising Code Section 9-9-60, relating to the definition of "medical malpractice claim," as follows:

"9-9-60.

For the purposes of this article, the term:

(1) 'Consumer health care transaction' means any transaction between a patient and a health care provider.

(2) 'Health care provider' means any public or private hospital, nursing home, clinic, hospital authority, ambulatory surgery center, pharmacy, physician practice, physician, physician assistant, nurse practitioner, dialysis clinic, obstetrical facility, home health agency, hospice provider, dietitian, nurse, nursing assistant, any diagnostic, treatment, or rehabilitation center as such term is defined in Code Section 31-6-2, and any of the affiliates, members, officers, employees, agents, or partners of any of the foregoing providers. Such term specifically includes any person or entity providing the types of services described in division (3)(A)(i) of this Code section.

(3) 'Medical 'medical malpractice claim' means any claim for damages resulting from or derived from the death of or injury to any person arising, including claims for wrongful death and loss of consortium, when such claim:

(A) Arises out of:

(1)(i) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care, rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of a lawfully authorized person; or

(2)(ii) Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, a health care provider or by any officer, agent, or employee thereof acting within the scope of his or her employment; or

(B) Alleges that:

(i) Any services rendered by a health care provider to a patient were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered;

(ii) A patient was injured or damaged as a result of negligent credentialing, hiring, or retention; or

(iii) A patient was injured or damaged as a result of a failure or breach by a health care provider to act, diagnose, or treat.

(4) 'Patient' means any person who contracts with a health care provider for, or who is the recipient of, health care services as identified in division (3)(A)(i) of this Code section. Such term includes any person who contracts with a health care provider for, or who is the recipient of, health care services or a recipient of services from one or more of the facilities identified in division (3)(A)(ii) of this Code section. Unless otherwise specified, such term includes a patient's agent, representative, spouse, family member, or other person who executes an arbitration agreement under the authority provided for in subsection (f) of Code Section 9-9-62."

SECTION 3.

Said article is further amended by revising Code Section 9-9-62, relating to a petition for arbitration, as follows:

"9-9-62.

If the parties to a medical malpractice claim agree in writing to arbitrate the claim pursuant to this article, they shall file a petition in the superior court of the county where any party resides for an order authorizing the arbitration of the claim in accordance with this article and for the appointment of a referee for the arbitration. If the judge determines that the claim is a medical malpractice claim subject to this article, within 30 days of the filing of the petition for such order he shall issue an order authorizing the arbitration and appointing a referee. However, no agreement to arbitrate shall be enforceable unless the agreement was made subsequent to the alleged malpractice and after a dispute or controversy has occurred and unless the claimant is represented by an attorney at law at the time the agreement is entered into.

(a) Arbitration agreements between health care providers and patients entered into in compliance with the provisions of this Code section shall be valid and enforceable and shall be submitted to arbitration in accordance with the provisions of this article.

(b) An agreement to arbitrate medical malpractice claims that meets the following qualifications shall not be deemed invalid, revokable, or unenforceable upon such grounds as exist at law or in equity for the revocation of any contract:

(1) Be a writing signed by the patient, his or her agent, guardian, or someone with the authority to act on his or her behalf, as specified in subsection (f) of this Code section;

(2) Be a stand-alone agreement or an addendum to an admission agreement;

(3) Be titled in 14 point or larger, boldface print, 'Voluntary Arbitration Agreement';

(4) Include a provision that the patient has the right to consult with legal counsel concerning the arbitration agreement at his or her own expense;

(5) Include a provision that the patient has the right to rescind the arbitration agreement within ten days after the arbitration agreement has been signed by the patient or his or her representative;

(6) Identify one or more institutions to administer the arbitration agreement or a means for selection of an arbitrator;

(7) Include a provision that the patient has the right, upon written request, to access information about the designated arbitration administering institution, its rules, and its fees. This requirement may be fulfilled by providing contact information, including, but not limited to, a website, telephone number, and mailing address with respect to the designated arbitration administering institution;

(8) Include a provision that the agreement shall not limit the patient's rights with respect to filing a grievance with the facility, the long-term care ombudsman, or any appropriate state or federal regulatory agency, including a nursing home resident's right to challenge a discharge under Code Section 31-8-116;

(9) Include a provision that the agreement shall not reduce or affect in any way the health care provider's duties and obligations with respect to the provision of care and treatment of the patient;

(10) Include a description of the types of claims covered by the arbitration agreement; and

(11) Include immediately above the signature line the following language in at least 12 point boldface type: 'THIS AGREEMENT GOVERNS IMPORTANT LEGAL RIGHTS. PLEASE READ THIS AGREEMENT IN ITS ENTIRETY BEFORE SIGNING IT. THE PARTIES UNDERSTAND AND ACKNOWLEDGE THAT, AS TO ALL DISPUTES THAT ARE GOVERNED BY THIS AGREEMENT, EACH OF THE PARTIES IS WAIVING THE RIGHT TO TRIAL BY JURY OR BY JUDGE, AND INSTEAD DISPUTES BETWEEN THE PARTIES SHALL BE RESOLVED BY BINDING ARBITRATION.'

(c) Patients shall be provided with a copy of the arbitration agreement and shall sign a written acknowledgment of receipt of a copy of the arbitration agreement. The signed receipt may be included as a separate signature line at the conclusion of the arbitration agreement. The signed receipt shall be conclusive proof that the patient received a copy of the arbitration agreement.

(d) For the convenience of the parties, unless otherwise agreed to by the parties after initiation of arbitration or as otherwise ordered in the discretion of the arbitrator, the hearing location shall be as near to the health care provider as is reasonably practicable for the parties and the arbitrator.

(e) The following provisions contained in an arbitration agreement shall be void and unenforceable and shall, to the greatest extent possible, be severed from the agreement rather than rendering the entire agreement void and unenforceable:

(1) Limitations on the amount of damages the arbitrator may award, other than a statement that the arbitrator is bound by any damage limitations which may be imposed by law;

(2) Limitations on the times for filing a medical malpractice claim other than limitations applicable in an arbitration agreement action for similar claims; and

(3) Waivers or releases of any claims or alteration of the burden of proof for any claims.

(f) In addition to the patient, the following persons shall be authorized and empowered to execute an arbitration agreement on the patient's behalf:

(1) A guardian of the patient's person;

(2) Any person authorized to act for the patient under an advance directive for health care or durable power of attorney for health care;

(3) Any person authorized to act for the patient under a general power of attorney;

(4) In the absence or unavailability, for whatever reason, of a person authorized pursuant to paragraphs (1) through (3) of this subsection, any married person for his or her spouse;

(5) In the absence or unavailability, for whatever reason, of a person authorized pursuant to paragraphs (1) through (4) of this subsection, any adult child for his or her parent;

(6) In the absence or unavailability of a living spouse, any parent, whether an adult or a minor, for his or her minor child;

(7) Any person temporarily standing in loco parentis, whether formally serving or not, for the minor under his or her care;

(8) Any female, regardless of age or marital status, for herself when given in connection with pregnancy, or the prevention thereof, or childbirth; and

(9) Upon the inability of a patient to consent for himself or herself to an arbitration agreement, the following persons shall be authorized to execute an arbitration agreement on the patient's behalf, in the following order of priority:

(A) Any parent for his or her adult child;

(B) Any adult for his or her brother or sister;

(C) Any grandparent for his or her grandchild;

(D) Any adult grandchild for his or her grandparent; or

(E) Any adult niece, nephew, aunt, or uncle of the patient who is related to the patient in the first degree.

(g) If the patient or his or her representative under subsection (f) of this Code section is unable to read or to physically sign an arbitration agreement, the agreement may be read to them or to a person assisting the patient in signing the arbitration agreement, provided that a witness signs the agreement.

(h) If a person specified in subsection (f) of this Code section signs an arbitration agreement, the patient shall be deemed to have ratified such agreement upon the patient's receipt of services from the health care provider.

(i) If the designated arbitration administering institution or such alternative institutions designated in the arbitration agreement are unavailable for any reason and if there is no other method available for selecting an arbitrator under the arbitration agreement, then upon petition of either party, a substitute arbitration administering institution shall be appointed by a court of competent jurisdiction and such substitute arbitration administering institution shall select an arbitrator pursuant to its policies or agreement of the parties. No arbitration agreement otherwise consistent with this Code section shall fail for want of an administering institution or arbitrator.

(j) Unless rescinded within ten days following its execution, an arbitration agreement consistent with this Code section shall remain effective and govern the consumer health care transaction for which the contract was signed and all reasonably related consumer health care transactions between the parties, including courses of treatment for an illness or injury. If a patient is formally discharged from a health care provider, a new arbitration agreement shall be required to cover any subsequent consumer health care transactions between the parties; provided, however, that short-term transfers out of a health care facility for consultations, therapeutic leaves of absence, or otherwise with the expectation of return shall not trigger a requirement for a new arbitration agreement, and any existing arbitration agreement shall remain in effect upon the patient's return to the health care facility.

(k) The mutual obligations to arbitrate by each party shall constitute adequate consideration for the enforcement of an arbitration agreement under this Code section.

(l) The provisions of this Code section shall be interpreted and applied at all times so as to favor the existence and enforcement of an arbitration agreement. An arbitration agreement that complies with this Code section shall be enforceable under 9 U.S.C. Sections 1-16, the Federal Arbitration Act, or under this article, and this Code section shall be interpreted to the greatest extent possible so as to harmonize with the Federal Arbitration Act.

(m) Upon the filing of a motion to compel arbitration in a court of this state, all discovery and all proceedings not related to the determination of arbitrability shall be automatically stayed until such time as such motion to compel is resolved.

(n) Any arbitration agreement pertaining to a consumer health care transaction already in effect as of the effective date of this Code section shall not be invalidated by this Code section."

SECTION 4.

Said article is further amended by repealing in their entirety Code Sections 9-9-63 through 9-9-83, respectively relating to the tolling of statute of limitations and when action permitted after filing of petition for arbitration; appointment of reporter, duties, and compensation; arbitration submission and irrevocability absent consent; qualifications and status of referee; arbitrators - how chosen; arbitrators - how vacancy filled; arbitrators - oath and affidavit; postponement of arbitration; adjournments by arbitrators and no meeting outside group; discovery; subpoena power of referee and compensation of witnesses; powers of referee to compel production of documentary evidence; competency of witnesses; rules governing examination of witnesses and admission of evidence; administration of oaths by referee; findings by arbitrators and the concurrence of two sufficient; copy of findings furnished parties, entry of original on court's minutes, effect and enforcement, and clerk's fees; finality of findings absent appeal, appeals to superior courts, transmittal of record, when findings set aside, disposition of case, and supersedeas; costs and how taxed; compensation of arbitrators and referee; and civil and criminal immunity of arbitrators.

SECTION 5.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 6.

All laws and parts of laws in conflict with this Act are repealed.