This is another case where the Supreme Court went out of its way to deny the poor and injured the right to a trial with a jury. Shockingly the Texas legislature had enacted Sec 74.451 of the Civil Practice and Remedy Code which put limits on arbitration agreements between doctors and patients. The statute reads as follows:
Sec. 74.451.ARBITRATION AGREEMENTS.(a)No physician, professional association of physicians, or other health care provider shall request or require a patient or prospective patient to execute an agreement to arbitrate a health care liability claim unless the form of agreement delivered to the patient contains a written notice in 10-point boldface type clearly and conspicuously stating:
UNDER TEXAS LAW, THIS AGREEMENT IS INVALID AND OF NO LEGAL EFFECT UNLESS IT IS ALSO SIGNED BY AN ATTORNEY OF YOUR OWN CHOOSING. THIS AGREEMENT CONTAINS A WAIVER OF IMPORTANT LEGAL RIGHTS, INCLUDING YOUR RIGHT TO A JURY. YOU SHOULD NOT SIGN THIS AGREEMENT WITHOUT FIRST CONSULTING WITH AN ATTORNEY.
(b)A violation of this section by a physician or professional association of physicians constitutes a violation of Subtitle B, Title 3, Occupations Code, and shall be subject to the enforcement provisions and sanctions contained in that subtitle.
(c)A violation of this section by a health care provider other than a physician shall constitute a false, misleading, or deceptive act or practice in the conduct of trade or commerce within the meaning of Section 17.46 of the Deceptive Trade Practices-Consumer Protection Act (Subchapter E, Chapter 17, Business & Commerce Code), and shall be subject to an enforcement action by the consumer protection division under that act and subject to the penalties and remedies contained in Section 17.47, Business & Commerce Code, notwithstanding Section 74.004 or any other law.
(d)Notwithstanding any other provision of this section, a person who is found to be in violation of this section for the first time shall be subject only to injunctive relief or other appropriate order requiring the person to cease and desist from such violation, and not to any other penalty or sanction.
In the case of Fredericksburg Care Company L.P. v. Juanita Perez the Texas Supreme Court held that the Federal Arbitration Act (FAA) preempted Sec 74.451. The Supreme Court in a convoluted and clearly result oriented opinion ruled that the FAA preempted Sec 74.451 striking down its provision (this case had insurance law implications where the Court could have easily ruled that Sec 74.451 was valid had they desired a different outcome). So even if a health care provider does not follow the rules of 74.451 the patient must participate in arbitration. This is another and continuing blow to the rights of individuals in favor of the rich and powerful. However the impact of this opinion may be limited because under Texas malpractice law itit is almost impossible to sue a doctor for even gross malfeasance. (just try and find a medical malpractice attorney in Texas if you don’t believe this). And because arbitration (which nearly always favors the rich and powerful) does now allow appeals most doctors don’t need arbitration agreements to win cases. However, the Texas Supreme Court wants them to have that right if they so choose. Interestingly this was a case for a nursing home (which received the same protection as doctors receive from malpractice suits) so that when you put your loved ones in their care the Supreme Court wants to make sure that the nursing home has as many options available to them to limit your right to sue them if they are negligent with your loved ones.