§ 74.451.Arbitration Agreements

A disclosure requirement, and the notice it prescribes is a substantial obstacle to health care arbitration in Texas.

No physician, professional association, or provider may request or require a patient or prospective patient to execute an agreement to arbitrate a health care liability claim unless the form delivered 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.

The requirement the notice announces is the substance. An arbitration agreement signed by a patient alone is of no effect; the patient's own attorney must sign too. A patient at a clinic reception desk cannot arbitrate away a malpractice claim by signing an intake form.

Enforcement differs by defendant. A violation by a physician or professional association is a violation of the Occupations Code medical practice provisions, subject to that subtitle's enforcement and sanctions.

A violation by any other provider is a false, misleading, or deceptive act or practice under the DTPA, enforceable by the consumer protection division — notwithstanding Section 74.004, the section that otherwise exempts providers from the DTPA.

Subsection (d) softens the first offence: a person found in violation for the first time is subject only to injunctive relief or a cease and desist order, and to no other penalty or sanction.