Ruling on nursing home arbitration shows the fine print counts

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Signing on the dotted line counts in arbitration cases, even if the text explaining that arbitration is voluntary isn't in bold print.

That was the decision from the Colorado Supreme court this week in a case involving a nursing home and its right to force a would-be plaintiff into arbitration once both parties have agreed to it. This was a clear provider victory.

Though the state's Health Care Availability Act requires bold-faced type, the judges ruled that 12-point type in all capital letters substantially satisfied the law's requirements.

Consumer protection laws in some states require nursing homes to bring special attention to the voluntary clauses.

In this case, the family of former Colorow Health Care resident Charlotte Fischer brought a wrongful death claim against the facility, alleging an assault by an employee led to Fischer's demise.

Colorow filed a motion to compel arbitration, but the family argued their agreement to do was invalid because it wasn't printed in bold type.

The court asserted there are other ways to draw attention to arbitration's optional nature.

“Highlighting the text in a particular color, underlining it, and printing it in all capital letters might also accomplish this goal,” wrote Justice William W. Hood III. “We don't believe that the General Assembly intended to elevate form over function. And function — that is, notice to the patient consumer of services — is better served by the flexibility substantial compliance affords.”