Colorado Permanente Medical Group, P.C. v. Evans

рer by participating wager only dollar retained members 99.5 cents each dollar’s worth subject is never risk of loss and spent playing to never tokens the slot machines. Maj. actually wagered. op. at Accordingly, 1216. Howev- is entitled to Tivolino exclude er, majority suggests guaranteed payments guaran- that such acknowl- of .5 cent edgement, accepted dispositive, spent by if as participating would teed for each dollar program result reported the conclusion members from amount as wa- 47.1-1307, gers pursuant violates Rule C.C.R. 207.1 to such statute. I therefore (Colorado 1307), Gaming Regulation conclude that Tivolino is entitled to tax by effectively allowing participating claims, respectfully members refunds it dissent purchase majority’s contrary for 99.5 cents and tokens later determination. Maj. op. dollar. redeem them for one at say I am authorized to that Justice LOHR 1216. joins in this dissent. However, stipulated require facts contrary A participating conclusion. mem- purchase

ber can not tokens and later $199 contrary,

redeem To them for $200.

participating and all members other casino

patrons initially purchase of Tivolino tokens and, presumably, face value redeem all

unused same tokens for the face value. Fur-

thermore, COLORADO PERMANENTE basis in MEDICAL there is no the record to GROUP, P.C.; Guidot, M.D.; assume, M. do, David majority appears as Bodak; Ricke, Joan Bonnie all Peti- partic- Casino Slot members become Club tioners/Cross-Respondents, every ipating members time visit Tivoli- no. For club example, a member elect purchase only worth of tokens—or $150 EVANS, Individual; Susan M. аnas Susan completed elect not to redeem a card. There Evans, M. as Guardian of Keith A. Ev prohibited redemption and thus no vio- no ans, Melinda N. Evans and Rebecca D. Gaming Regulation lation of Colorado 1307. Evans, Minors; Evans, and Susan M. majority possible recognizes these sce- Representative Estate of Michael narios but suggests that because Casino Slot Evans, Deceased, Respondents/Cross- D. guaranteed Club “not members are to re- Petitioners. .5<p every spent,” ceive a dollar credit on such No. 95SC270. .5 cent wager. Maj. sum must deemed a view, op. at my analysis 1216. In fails to Colorado, Supreme Court recognize the fact that Tivolino seeks to ex- En Banc. adjusted gross proceeds only clude from its actually paid those sums to members who Nov. 1996. is, guarantee—that claim the paid sums Rehearing Dec. Denied participating members. Casino Slot Club wager members who less than or who $200 guarantee

elect not to claim the receive no

payments, payments only are made view,

respect my wager units. $200

majority’s analysis does address the fact only participating members receive

guaranteed equal payment to .5 cent for each spent

dollar playing the slot machines. guaranteed subject

That payment is not

any risk of loss. circumstances, purposes these 27-47.1-103(1) participating members Offices, Law M. Fitz-

FitzGerald Robert Gerald, Lohf, Jacobs, P.C., Shaiman & John Steele, Denver, Respondents/Cross- C. Petitioners. Opinion of

Justice KOURLIS delivered the the Court. (Evans) brought Evans medical

Susan a malpractice wrongful arising death suit husband, out of the death of her Michael (decedent), against Evans Kaiser Foundation (Kaiser),1 Health Plan Colorado Permanente (CPMG),2 Guidot, Group Medical Dr. David employees. and several Kaiser The thresh- presented old to issue us certiorari3 is whether the arbitration Kaiser clause Group Hospital Permanente Medical and (Kaiser Agreement Agreement) Service 13-64-403, under section 6A unenforceable (1996 Supp.), C.R.S. of the Health Care (HCAA).4 hold, Availability Act We consis- appeals tent with court of decision Evans v. Cobrado Medical Permanente P.C., Group, (Colo.App.1995), 902 P.2d 867 Johnson, Carney Karr, Pryor, Montoya, & apply that HCAA does to the Kaiser P.C., Moran, Nixon, Elizabeth C. S. Agreement; Scott the Kaiser did Englewood, Petitioners/Cross-Respon- comport not with the section 13-64-403; dents. and therefore that the arbitration organization dispute 1. is a health procedures, Kaiser maintenance HMO address resolution (HMO) organized including under Part 4 of the Colorado arbitration. - Act, §§ appeals ap- Health Care 512, to 10-16-101 2. Whether the court of erred (1994 13-21-111.6, Supp.), (1987), plying 4A C.R.S. & § 1996 6A C.R.S. to re- Act, (1991). doctor, quire § HMO 42 group, federal U.S.C. Gen- 300e the defendant medical erally, entity provided an HMO is an that both insures for who nurses services under the Kaiser services, through pay damages and furnishes health care con- to contract the decedent's hos- arrangements hospitals pital expenses already paid by tractual with selected that had been defined, physicians. recipients are Kaiser. voluntarily population, appeals enrolled whom with 3. the court of Whether erred hold- contracts, Miemet, periodic, exchange ing also HMO General Electric Co. v. per capita premiums. (Colo.1994), prepaid, Indepen- Chase v. P.2d 1361 in which court held Ass'n, $250,000 Mass.App.Ct. cap dent Practice on noneconomic dam- statute, ages general damages § N.E.2d n. 3 13-21- 102.5, (1987), applied C.R.S. 6A should be physician group 2. CPMG is a basis, that contracts with "per apply defendant” did not provide to $250,000 medical services for Kaiser cap damages on noneconomic in the statute, enrollees. malpractice damages medical 13— 64-302, (1995 thereby Supp.), 6A C.R.S. limit- issues reviewed on certiorari were framed ing damages amount of noneconomic as follows: jury’s awarded Evans in the to a verdict $250,000. appeals figure single 1.Whether the court erred in hold- review, ing presented citing arbitration clause in Kaiser’s HMO statutes respect parties Supple- contract unenforceable with medical referred to the 1995 Cumulative claims, malpractice by determining changes that it did note that there ment. We have been no Therefore, language require- meet the pertinent and format 1995 statutes. 13-64-403, (1995 Supp.), opinion Supple- ments cite will to the 1996 Cumulative complied when clause statutes and ment. regulations specifically enacted for health -503, organizations, specifically 4.§§ maintenance 6A C.R.S. I. enforceable.5 clause was not 7, 1990, Sunday, January On decedent the other two issues on which we As to Urgent went to the Kaiser East Care Clinic certiorari, affirm the court of granted we suffering because he was from sеvere flu-like medical appeals decision that the clinic, symptoms. At the Nurse Bodak inter- statute, damages viewed him and cheeked his vital statistics. (1996 Supp.), recovery for non- limits Ricke then showed him to an Nurse examina- $250,000 per patient; .damages economic tion room where he was examined Dr. and, inter- we reverse the court Guidot, physician employed by CPMG. Dr. statute, pretation of the collateral source sec- Guidot advised decedent that he had 13-21-111.6, and re- probably pulled a stomach muscle vom- to offset from the mand with instructions home, iting rest, go and that he should expenses portion award a Tylenol. take Dr. told the Guidot decedent already paid amount that Kaiser has as the symp- that if he continued to suffer from the decedent’s health insurer. toms, he should return to the clinic or call initially The trial court ruled that the arbi- Special Joseph Hospi- Care Clinic at St. was not enforceable. After tration clause tal. The decedent followed Dr. in- Guidot’s discovery, some the court then dismissed structions. Kaiser from the suit on Kaiser’s motion for approximately Monday, At 3:00 a.m. on summary judgment. proceeded The case 8, 1990, January the decedent suffered a CPMG, Guidot, against trial Dr. and two attack. massive heart He was taken am- employees, Kaiser Nurses Joan Bodak and Hospital to Humana bulance Aurora. Providers). (collectively, Bonnie Rieke room, hospital emеrgency phy- a team of trial, jury After a two-week rendered a sicians determined that the decedent was in verdict in favor of Evans in the amount of septic pervasive shock from a bacterial infec- $2,000,000 approximately damages. Surgeons quickly tion his stomach. moved subsequently jury trial court reduced the stomach, to remove his which had necrosed. statutory pursuant cap award to the in sec- given large The decedent was doses of intra- Supp.), and placed in venous antibiotics and was intensive the collateral source rule in section 13-21- efforts, Despite care. all he died later that 111.6, 6A C.R.S. The Providers and day. subsequently diag- His condition was appealed aspects Evans both various phlegmonous gastritis, a stom- nosed as rare

judgment. The court of modified the Group ach inflammation caused invasive A judgment by reinstating jury award ‍‌‌​​‌‌‌‌‌​‌‌‌​​​​​​​‌​‌‌​​‌‌​​​​​‌​​​‌​‌‌​‌‌‌​​​‍for streptococcus, fast-moving, highly toxic expenses medical but otherwise affirmed. bacteria. Evans, 902 P.2d at 877. death, At the time of his the decedent was old,

Although party appeal, years it was not a a husband and father of three children, petitioned employed Kaiser this court for certiorari. minor and was as a com- cross-petitioned puter programmer. Through employ- Evans his certiorari and ment, improp- coverage made a motion to Kaiser as an had health care strike the decedent petitioner. family pursu- er We denied the motion to for himself and his with Kaiser prejudiсe briefing argu- strike without and ant to the Kaiser which he had July Agree- motion on Kaiser ment substantive review. executed 1989. The requiring hold that Kaiser a clause the arbi- We now reenter the ment contained purposes.6 any brought by case for certiorari review tration of claims the dece- granting and 6. We note that order certiorari in- Pursuant our petition cross-petition granting and certiorari, certiorari our order name in the of the case. cluded Kaiser’s caption as to whether the HCAA is Having question preempted determined that Kaiser is not entitled to § 2 Act, the Federal Arbitration 9 U.S.C. proceeding, we have in this certiorari participate is not before us and we no express opin- deleting corrected the of this caption opinion by regard. HID, ion in that See discussion at infra Kaiser's name. 22-24. pp. summary family against granted court or his Kaiser The trial later dent providers”7 rendering profes- care judgment negligence “health for Kaiser on the and agreement.8 sional services under the contract claims and dismissed it from the proceeded case suit. The to trial clause, Notwithstanding the arbitration trial, jury After a Providers. two-week filed suit in district court on her own Evans Evans, apportioning fault found for 50% behalf, children, guardian as the of her Bodak, CPMG, Dr. Guidot 25% to Nurse representative as of the decedent’s estate. Ricke, complaint, alleged that 10% to and 15% to the dece- In her Evans Nursе negligently diagnose adjusted damages had failed to Providers dent. The trial court treat award, $1,002,176 the decedent’s condition. Evans including reducing the alleged further that Kaiser had failed to $250,000 damages award for noneconomic maintain the decedent’s medical records ade- malpractice damages pursuant to medical quately and to them to the communicate statute,9 past reducing award nurses; defendant doctor and $40,000, expenses by approximately policies maintained had unreasonable statute,10 pursuant to the collateral source procedures for the of health care previously Kaiser had paid because those death; led to the and that decedent’s expenses the decedent’s health insurer. Kaiser had breached its contract with the appeal, On Evans claimed that the trial provide health decedent him with granting summary judg- services. court had erred disputed ment for Kaiser and the reductions a motion The Providers Kaiser filed damages by in the award made trial stay compel proceeding the district court part court. The Providers asserted in that pursuant to the arbitration clause had in holding the trial court erred the arbi- Agreement. Kaiser trial court tration clause unenforceable. The court was held arbitration clause unen- appeals affirmed the unenforceability forceable because it did not by arbitrаtion clause under section language prescribed format and 13-64-403, (1996 Supp.), damages 6A and the reduction of C.R.S. noneconomic (1996 13-64-302, HCAA. under section 6A C.R.S. 13-64-403(12)(a), 7. Section C.R.S. 6A failure render services or the or Supp.), “any provider” defines "health as provide care Agree- failure benefits under this person by licensed or state of certified Colo- ment the consideration or claims or defense of clinic, any to deliver health health rado care and Section, in this described (3) dispensary, facility or health licensed state monetary damages juris- exceeding For any professional The term of Colorado. includes Court, limit of the dictional (4) Small Claims corporation professional entity or other com- ("Re- Against following one or more of the prised providers permitted of such health care spondent”): by the laws of this state." All uses term Plan, (a) Health provider” opinion "health in this refer to (b) Hospitals, statutory this definition. (c) Group, Medical (d) Any Physician, or 8. Section of Kaiser contains the (e) Any employee agent foregoing. reads, or pertinent part: arbitration clause. It Furthermore, “Application Membership for ARBITRATION 8. OF CLAIMS signed by Enrollment” the decedent also con- Any A. INITIATING A CLAIM. claim aris- directly signature ing tained alleged duty a sentence above the violation of a incident to Agreement, irrespective basis for the line which read as follows: duty legal upon or of the part my membership, theories which the I that as a understand asserted, binding claim is shall be submitted plan agreement requires service health arbitration if the claim is asserted: money any damages claim for a asserted Member, (1) By a or a Member's heir or personal representatives heirs or member’s personal representative, by person claim- or a binding must submitted to in- ing duty that a to him or her arises from a court trial. stead of Plan, relationship Hos- Member's with Health pitals Group Agree- or Medical to this incident (1996 Supp.). 9. (“Claimant”), ment reason, (2) including, For but limited 13-21-111.6, (1987). to, death, disturbance, bodily injury mental arising loss economic from the rendition or summary judg- rehearing ap- It also affirmed the has been filed the court of However, peals.” for Kaiser. the court modi- ment damages past for

fied the award previously peti We have held that a concluding expenses that the trial court had tion for certiorari will not be entertained application erred in its of section 13-21- prerequisite this court in the absence of the 111.6, and should not have petition rehearing. Group, for See Farmers approximately reduced the award Williams, (Colo. Inc. v. 805 P.2d 428-29 $40,000 previously paid. that Kaiser had Ev- 1991). Group, In Farmers we held that ans, 902 P.2d at 875-76. 52(b) requires parties C.A.R. both “to re Although it was dismissed before trial and quest rehearing by a appeals the court of appeal, party peti- was not a Kaiser aspects those of the decision adverse to Uрon tioned this court for certiorari. cross- Group, them.” Farmers 805 P.2d at 428-29. certiorari, petitioning Evans made a mo- party may rely upon Neither par the other improper petition- tion to strike Kaiser as an ty’s filing. Wiggins People, See also motion, gave 341, 343, er. This court denied the but (1980); 199 Colo. 608 P.2d argue appeal. Evans leave to the issue on Honey v. Ranchers & Farmers Livestock Co., Evans has raised this issue her brief and 503, 504, Auction Colo.

we now address it. 799-800 petition rehearing The Providers filed a II. the court of action and Evans filed cross-petition. argues any- that since Kaiser Kaiser did not file Evans thing. Because Kaiser party party neither a at trial nor a seeks certiorari on particular it, only holding issues our appeal appeals, in the court of the,case interject Group suggests Farmers peti not now itself into Kaiser’s fail- tioning request rehearing by ure to for certiorari. the court of appeals precludes filing petition it from contrary, To the Kaiser contends that it certiorari in court. this party a became to the action the court of appeals by cross-appeal virtue of Evans’s of Moreover, Clark, in Miller v. 144 granting summary judgment the order 431, 432, 965, (1960), Colo. 356 P.2d 966 we dismissing against her claims Kaiser. How- appeal held that to maintain an an individual ever, Kaiser did not file documents with entity party or must “either be to the appeals the court of and was not included in person substantially actiоn or ... must be caption proceeding. Most critical- aggrieved by disposition of the case ly, petition rehearing Kaiser did not file a for above, the lower court.”11 As discussed Kai appeals. in the court of party was not a ser the action the trial

Both require appeals. the statute and the rule court or in the court of if Even filing petition rehearing apply petitions, of a for as a condi- Miller standards to certiorari precedent petition to a for certiorari. we conclude that Kaiser was not substantial ly pro- aggrieved disposition Section of the case in appeals. vides: the court of (1) application may Before be made for argues substantially ag- Kaiser that it was certiorari, provided writ of as in this sec- grieved by appeals disposition court of tion, application shall be made to the court (1) the case for two reasons: the court of appeals rehearing provided by for a appeals decision rendered Kaiser’s standard supreme court rule. agreement with thousands of 52(b) (2) void; Similarly, accepted C.A.R. directs that writ HMO enrollees and Kaiser “[n]o certiorari, petition liability judgment will issue unless a for for the its two considerably compelling arguments 11. The Miller case arose in the context of a direct more than appeal, thereby framing different concerns from aggrieved party step does an that wаits to for- posed by aggrieved those entity seeking certiorari review. An filing petition. ward until the of a certiorari appeal to enter the case on has Ricke, Next, employees, liability Bodak Nurses Kaiser contends that its judgments against liability impacted by appeals the nurses constitutes an the court of However, injury liability or burden. determination of the issues.12 employment relationship arose Kaiser’s nurses, with the not from a court order. aggrieved “The word refers to ... liability employees Kaiser’s own to its is not right, denial ... of some claim of either of appeals affected the court of construction property person, imposition or of or the ... Agreement. of the Kaiser obligation.” of some burden or Wilson v. 100, 100, Regents, Board 46 Colo. 102 P. Therefore, although judg- the trial court’s 1088, Winker, See Bush v. may liability, ment have affected Kaiser’s (Colo.1995) (general partner P.2d sub appeals only court of decision did so indirect- stantially aggrieved by judgment default reasons, ly. For these there is not a suffi- against partnership judgment because creat ciently direct causal connection between the liability general partner ed conditional if appeals court of decision and Kaiser’s partnership satisfy injury judg failed to claimed to warrant the conclusion that Court, ment); directly substantially ag- Kaiser was Bye v. District 701 P.2d grieved by the (Colo.1985) decision. (court-appointed attorneys n. 10 substantially aggrieved by trial court’s denial petition Kaiser did not rehearing file a fees); requested attorney’s Tower v. Tow appeals. in the court of It further did not er, 480, 486, 147 Colo. 568 request right party intervene as a (1961) (attorney substantially aggrieved by Rather, proceedings. simply certiorari it re- jur trial court’s determination that it lacked configured caption of the Evans case to attorney isdiction to award fees to which was petitioner indicate that it was a for certiorari entitled). joined review and this action without notice counsel, motion, opposing or order of the Kaiser has failed to demonstrate that it addition, court. Kaiser has failed to dem- substantially aggrieved by the court of substantially aggrieved onstrate that it was appeals through legal decision the denial of a Thus, appeals the court of decision. we right imposition begin a burden. To participate conclude that Kaiser not now with, incorrectly asserts party as a appeal writ of certiorari. court of decision has rendered its standard with thou- III. sands of HMO enrollees void. The court of appeals held that provision the arbitration turn We then to the central issue of providers was void as to the health care 13-64-403(3) whether sections by Agreement covered the Kaiser in mal- (1996 Supp.), of the HCAA render the practice brought directly against actions provision Agree- arbitration in the Kaiser appeals them. The court of did not address ment against unenforceable as the Providers. enforceability of the arbitration 13-64-403(3) requires Section language that Hence, against enforceability Kaiser. patient informs the of the intentions and un- the arbitration clause in certain actions derstandings parties var- discloses against impact- certain defendants has been rights, ious substantive including pa- ed, sweeping but not manner Kaiser right tient’s to seek counsel and to rescind argues. agreement days arbitration within 90 complaint, initially 12. In ously negligence her Evans did not as- liable for the of the two nurses. any vicariously sert claim that Kaiser was liable opposed grounds Defendants the motion on the employees, for the actions of its Nurses Bodak adding stage Kaiser as a defendant at that trial, however, and Ricke. Late in the Evans prejudicial. the trial would be The trial court Complaint made a Motion to Amend to Conform party, denied the motion to add Kaiser aas to Evidence and to Add Kaiser Foundation part upon understanding based in that all Health Plan of Colorado as a Defendant. this parties accepting believed that Kaiser was re- motion, Evans did claim that Kaiser was vicari- 13-64-403(4) argue re- its execution.13 Section Providers further that the HCAA does every agreement quires that in- apply gov- to HMOs because HMOs are paragraph, 10-point, clude four bold-face exclusively by erned Part 4 of the Colorado warning patient that he or she is Act).15 (Coverage Health Care agreeing to arbitrate medical The court of did not resolve the claims.14 question of whether Kaiser is a health care

A. provider purposes Rather, of the HCAA. it entity concluded the individuals and dispute The Providers do not Kai- seeking refuge Agreement behind the Kaiser did not ser with the re- and, indisputably providers were health care Rather, quirements of the HCAA. as- Evans, thus, applied. the HCAA 902 P.2d at applies only sert that section 13-64-403 any ambiguity 872. The court resolved agreements patients entered into between by spe- HCAA created the absence of a providers directly. They and health care Kaiser, HMO, cific relying upon reference to HMOs claim that as an fall does not (2) statutory language of within the definition of a health subsection of section 13-64- Evans, and, thus, provider, Agree- the Kaiser 902 P.2d at 872. The court ment is not covered the HCAA The inferred from that subsection that the statute sponsibility any judgments entered OF MEDICAL MALPRACTICE DECIDED BY the nurses. NEUTRAL BINDING ARBITRATION RATH- ER THAN BY JURY OR COURT TRIAL. 13. Section YOU HAVE THE RIGHT TO SEEK LEGAL Supp.), provides that: COUNSEL AND YOU HAVE THE RIGHT TO RESCIND THIS AGREEMENT WITHIN Any agreement following such shall have the NINETY DAYS FROM THE DATE OF SIG- part agreement: statement set forth as NATURE BY BOTH PARTIES UNLESS THE "It is understood that claim of medical AGREEMENT WAS SIGNED IN CONTEM- malpractice, including any claim that medical PLATION OF HOSPITALIZATION IN unnecessary services were or unauthorized or WHICH CASE YOU HAVE NINETY DAYS improperly, negligently, incompetently were omitted, AFTER DISCHARGE OR RELEASE FROM rendered or will be determined THE HOSPITAL TO RESCIND THE AGREE- binding submission to arbitration in accor- MENT. provisions dance with the of ‍‌‌​​‌‌‌‌‌​‌‌‌​​​​​​​‌​‌‌​​‌‌​​​​​‌​​​‌​‌‌​‌‌‌​​​‍the "Uniform 1975”, part NO HEALTH CARE PROVIDER SHALL Arbitration Act of 2 of article 22 of Statutes, WITHHOLD THE PROVISION OF EMER- title Colorado Revised and not GENCY MEDICAL SERVICES TO ANY process except lawsuit or resort to court PERSON BECAUSE OF THAT PERSON’S provides judicial Colorado law review of proceedings. patient FAILURE OR REFUSAL TO SIGN AN has the right legal AGREEMENT CONTAINING A PROVISION concerning to seek counsel agreement, right FOR BINDING ARBITRATION OF ANY and has the to rescind this agreement by physician DISPUTE ARISING AS TO PROFESSIONAL written notice to the ninety days agreement within after the has NEGLIGENCE OF THE PROVIDER. signed parties been and executed both un- NO HEALTH CARE PROVIDER SHALL signed contempla- less said REFUSE TO PROVIDE MEDICAL CARE patient being hospitalized, tion of the in which SERVICES TO ANY PATIENT SOLELY BE- agreement may case be rescinded writ- CAUSE SUCH PATIENT REFUSED TO SIGN physician ninety days ten notice to the within SUCH AN AGREEMENT OR EXERCISED discharge hospital after release or THE NINETY-DAY RIGHT OF RESCIS- parties other health care institution. Both SION. it, agreement by entering agreed into have binding -512, (1994 to the use of 15. §§ arbitration lieu of 10-16-101 to 4A C.R.S. & having any dispute enacted, such decided in a court of Coverage When jury." law before a reorganiza was a nonsubstantive revision and tion of the Colorado health insurance statutes. 13-64-403(4), 14. Section 6A C.R.S. Act, Coverage §§ Part 4 of the 10-16-401 to Supp.), provides that: -428, (1994), Origi deals with HMOs. Immediately preceding signature nally, legislation lines this HMO was known as the agreement, following Organization for such an notice "Colorado Health Maintenance Act,” -140, printed ten-point, §§ shall be in at least bold-faced 10-17-101 to type: repealed before it was and reenacted as Part of 29, Coverage approved Apr. Act in 1992. Act NOTE: BY SIGNING THIS AGREEMENT 1, ch. sec. 1992 Colo.Sess.Laws 1729. YOU ARE AGREEING TO HAVE ANY ISSUE any agreement providing

applies Agree- for the that issue we hold that the Kaiser claims, malpractice require- ir- comply arbitration of medical ment must with the HCAA capacities parties respective of the to ments order to be enforceable rejected agreement. Id. It thus the Providers. argument apply that the statute did not be- primary A purpose court’s inter provider. cause Kaiser was not a health care preting give a statute is to ascertain and Moreover, court Id. found no conflict legislature. effect the intent of the Smith HMO-specific legislation in between the (Colo.1994). Zufelt, requirements imposed Act and the intent, legislative To effectuate the we first by the HCAA. Id. The court concluded statutory language give look to the applied Agree- that the statute to the Kaiser phrases plain ordinary words and their agreement provided ment since the for the HCAA, meaning. Part entitled arbitration of medical claims. “Procedures and Evidence Medical Mal provision Id. Because the arbitration did not Actions,” practice contains section 13-64-403. 13-64-403, comply provision with section that governs This section form and substance was deemed void and the Providers were not agreements of arbitration used in the health permitted compel arbitration. Id. at 873. care context. Section 6A agree appeals. We with the court of (1996 Supp.), C.R.S. states that: Any agreement provision for the of medi- B. provision cal services which contains a party pro- Since Kaiser is not a to this binding any dispute arbitration of as to ceeding, surviving and since there are no professional negligence of a health care Kaiser, against claims we need not reach the provider provisions that conforms to issue of whether is itself a health contrary this section shall not be deemed Rather, provider. our task is to evalu- public policy to the of this state.... Agreement pro- ate whether the Kaiser addition, portion the final of Part 4 of the case, pounded by the Providers in this is provides part “[t]his HCAA that 4 shall take subject of the HCAA. 1, 1988, July apply effect and shall to ácts or Agreement requires The Kaiser occurring omissions on or after said date and disputes arising of all between the decedent apply agreements shall for medical ser- Kaiser, employees, contracting its containing binding provi- vices physicians. The Providers in this case were sion on or after said date.” employees contracting physicians of Kai- (1996 Supp.). ser. It is the Providers who here seek to undisputed It Agree- the Kaiser provisions. enforce the arbitration Kaiser is provision ment is for the of medical services case, party not a to this and there are no provides binding and that it for the arbitra- against direct claims Kaiser that are at is- professional negligence tion of claims sue. providers. health care If the Providers had Hence, we must determine whether Agreement directly entered into the Kaiser decedent, the Providers enforce the clearly arbitration with the the HCAA would provision apply. of the Kaiser Nothing suggests even in the statute though undisputed identity it is contracting party requires Thus, does not with section 13-64-403. despite On different result.16 fact argument provider. application 16. The basis of the Providers’ Such a narrow would en- only applies agreements providers require- HCAA between a able health care to avoid the provider simply by having patient ments of the statute health care and a is the follow- non-health providers sign ing language: agreements general "It care arbitration on is the intent of the assembly support application agreement their behalf. We cannot an that an a be vol- easily purposes untary agreement that would so patient frustrate of the between a and a health HCAA. provider-" § care 6A C.R.S. (1996 Supp.). argue 13-64-403(1) complete reading § The Providers that this cri- A of reveals only quoted language require- terion would be satisfied if an arbitration relates to the agreement actually signed by agreement were a health care ment that an arbitration be entered

1227 If grievances the decedent contracted with Kaiser and complaints that enrollee’s directly through specified individual health be with the resolved arbi- agreement, tration providеrs charged malpractice who were with the enrollee shall be case, 13-64-403, rights advised in writing in this section of his and duties (1996 Supp.), applies Agree- agreement to the Kaiser under the at the time the com- plaint registered. Any is ment.17 such accompanied

must be a statement set- ting writing forth in the terms and condi- C. binding tions of Any arbitration. health upon rely The Providers the existence organization maintenance that makes such Coverage Act a shield of for HMOs binding arbitration a condition of enroll- They the HCAA maintain that fully ment must requirement disclose this governed exclusively by HMOs are the Cov to its enrollees in the contract and evi- erage required Act and are not dence of coverage. the HCAA. Hence, dispute procedures resolution and ar- Coverage governs Part of the Act agreements bitration used HMOs are con- organization and of activities HMOs Colo- degree by trolled to some the statutes and any spe- rado. The statute not set out does regulations specifically apply that to HMOs. regarding cific enrollees; agreements between HMOs and Coverage provides it While the Act that does, however, that each mandate HMO es- HMOs act general supervision under the of complaint system Insurance, tablish and maintain a ap- the Commissioner of there is proved nothing Commissioner Insurance to in the Act Coverage that would ex- provide procedures empt for the reasonable resolu- HMOs from the HCAA when the complaints tion of written initiated agreements enroll- HMOs enter into arbitration on concerning § ees health employees care services. 10- behalf of their and the other 16-409, commissioner, 4A C.R.S. providers health care with whom con- turn, promulgated regulation has tract. Section agreements concerns arbitration of the Coverage used forth statutory sets regulation, VIII(D)(5), HMOs. This Rule relationship construction and to other laws of (1992),provides: C.C.R. 702-4-7-2 provides Part of the Act.18 It voluntarily. patient’s into no right There is evidence that sub- such as the of rescission and the (1) application requirement is intended to limit the precise language informing Rather, scope the statute. statute patient is rights. of his or her Because these safe- 13-64-403(2) expressly § addressed in 13- guards protection were intended for of all 64-404. patients, legislature it is clear that the was focus- ing any agreement concerning arbitration of interpretation We 17. note that this of the HCAA regard without claims legislative history. consistent with the capacities parties agreement. originally HCAA was introduced as Senate Bill 143 in the Senate Business Affairs and Labor 10-16^121, (1994), pro- 18. Section During Committee Senator Ted Strickland. pertinent part: vides in 143, the Senate floor debate on Senate Bill Sena- (1) 10-1-102, 10-1-121, Except for sections expressed tor Strickland his concern for “the 10-1-122, 10-3-118, parts state,” patients country in this and in this title, 7 of article 3 of this as otherwisе purpose provide stated that one the bill was to article, provided provisions this patients option these with an to settle their provisions nonprofit insurance law and hos- timely through claims in a fashion arbitration. pital, medical-surgical, and health service cor- Senate Floor Debate on S.B. 56th Gen. laws, poration applicable Sess., However, shall not Assembly, 2d 1988. Feb. organization granted health maintenance legislators, espe- Senator Strickland and other authority part cially certificate of under this 4. Senators Donald Sandoval and A. Brian McCauley, cognizant danger were (3) Any organization patients might rights health maintenance au- waive their to sue in court part because thorized under of this article and of duress or lack of information. this part Hearings practicing See 4 shall not to be also on S.B. 143 before the Senate be deemed Committee, exempt provi- medicine and Business Affairs and Labor Feb. shall be from the protect against danger, practice relating To sions of the Senate laws of medi- 13-64—403, specifically safeguards included cine. 1228 had failed to inap- FAA because the defendant are categories of statutes

that certain our HCAA, however, at trial. Consistent with raise the issue is plicable to HMOs. Lambdin, to consider we decline statute,19 fall into a decision does not and title 13 argument here. Providers’ by 10-16-421. designated section category еxempt Thus, does not section upon judicial system depends the or- Our of the HCAA. application HMOs from the derly presentation preservation issues. level, given parties must be Furthermore, At the trial court no conflict between there is argue opportunity present evidence Coverage Act an legislative mandates Act, legal ramifications of factual as well as the HCAA. Under level, At court of that evidence. must meet the procedures dispute resolution identify that are parties must the issues and arbitration approval commissioner’s analysis and the case and invite require- critical to agreements must conform Proceeding VIII(D)(5), other- resolution of those issues. 3 C.C.R. forth in Rule ments set HCAA, injustice. (1992). risks substantial an wise Under 702-4-7-2 of claims requiring arbitration agreement exception. Neither the This case is no providers must contain against health care preemp- Providers nor Kaiser21 raised required section 13-64- language court, they did argument tion the trial (1996 403(3) Supp.), and appeals. appeal it to the court of not raise in the comport the other measures must with why they could not have There is no reason protect patients. The designed to Although important United done so. two regard to two acts with requirements of the post-date the Supreme Court cases22 States contradictory agreements are question of feder- proceedings, trial court comply must conclude that HMOs and we regulating preemption al of state laws arbi- with both.20 early as 1984 tration clauses was framed as 1, Corp. Keating, v. 465 U.S. Southland D. 10-11, 852, 858-59, 79 L.Ed.2d S.Ct. (1984). newly The issue is not minted. Next, assert that sec the Providers danger permitting additional issues Federal preempted tion 13-64-403 is (1994). proceed- (FAA), stage § 2 at this late in the to be raised 9 U.S.C. Arbitration First, admit, however, they ings exemplified this case. failed to They trial issue should have been heard argument appeal trial or on make this request initial District court in connection with the appeals. In Lambdin v. the court of (Colo.1995), ques- Court, the matter to arbitration. The we refer argu of whether the Kaiser falls the defendant’s declined to consider scope of the FAA involve preempted within the ment that a state statute was Rather, provides complying that a Statutes con- the statute the Colorado Revised 19. Title 13 of procedure agreement "govern and court would all subse- tains the law of courts quent provision of services for which the Colorado. medical signed.” § agreement was argue 20. The Providers Hence, (1996 agree- an initial Supp.), are un- enrollee, ment executed between an HMO and delivery applied workable when to health period, appear rescission would to be with one argument that the stat- an HMO. This assumes subsequent services. sufficient for all sign requires enrollees to an arbitration ute illness, every agreement have a new time party when the Kaiser was still a to the case physician, clinic. or visit different see new enforceability of the arbitration that, argues 13- Evans in order by the trial court. decided 64-403, only requisite add the state- Kaiser need rights to its standard service ment of and notice - Casarotto, Assocs., v. 22. See Doctor's Inc. signature agreement and obtain an enrollee's -, S.Ct. 134 L.Ed.2d 902 U.S. agree We with Evans. The once. are inclined Dobson, (1996); us, but, concept, Allied-Bruce Terminix Cos. squarely issue is not before -, S.Ct. 130 L.Ed.2d 753 why -U.S. would we find no reason a new specific required medical service. for each Second, rebriefing plaintiffs factual determinations.23 meant to limit the total award or argument liability of the issue before this court the of an individual defendant.” Niemet, delay opin- the issuance of an at 1364. reviewing would further In the legislative 13-21-102.5, already pending history ion when has of the case been section we years. goal for noted that of general assembly over five the the enacting cap in was to increase the af- charged resolving are with We issues fordability of insurance improving the applicabili- properly that are before us. The predictability risks of faced insurance ty presented findings of FAA not was companies. at 1365. Id. We also deter- level; rulings trial it at the court was not legislature’s mined that it intention argued appeals of it to the court and was not to balance “the concern over af- insurance grant in framed certiorari beforе this fordability predictability with concern for clearly court. an im- Although issue is seriously injured people.” fairness to Id. one, portant we should not strain the con- cap concluded that “[t]he We intent was fines of this case and reach out decide it. damages paid by the amount of noneconomic defendants, in individual order to increase IV. predictability companies, for insurance while We turn to the other issues now .two raised restricting recovery at the same time not grant of certiorari. The court of damages by seriously injured of noneconomic appeals judgment the trial court’s affirmed persons necessary....” more than was Id. (1996 13-64-302, section Hence, $250,- at 1365-66. we held that Supp.), malpractice damages the medical lim- cap damages on noneconomic in section HCAA, itation limited Ev- plaintiffs recovery 13-21-102.5 limits recovery ans’s total for noneconomic dam- damages $250,000 noneconomic from each Evans, ages $250,000. P.2d at 1367-68. defendant. argues Evans that the court of erred argues Evans in reasoning Niemet in applying statutory cap in section 13- $250,000 applies cap on noneconomic patient” “per 64-302 on a rather than basis damages in damages “per on a defendant” basis. She contends statute, (1996 section that this is conflict this result court’s Supp.), and that she should thus be allowed Niemet, decision in Electric General Co. $250,000 to recover a maximum of in noneco- (Cоlo.1994). 866 P.2d 1361 damages nomic from each defendant Niemet, interpreted general we disagree. case. We statute, ‍‌‌​​‌‌‌‌‌​‌‌‌​​​​​​​‌​‌‌​​‌‌​​​​​‌​​​‌​‌‌​‌‌‌​​​‍13-21-102.5, damages malpractice damages The medical statute Supp.), provides C.R.S. & part: provides in relevant that: all total amount recoverable for dam- any damages civil action which ages for a of care course for all defendants injury noneconomic loss or be award- any damages civil action for in tort ed, damages the total such shall not brought against a professional health care fifty exceed the sum two hundred thou- ..., dollars, shall exceed one million dollars, justifi- sand unless the court finds present patient, including any per value convincing cation clear evidence by any claimant, derivative claim other therefor. In no case shall amount fifty which not than more two hundred damages such exceed five hundred thou- dollars, present per pa- thousand value sand dollars. tient, by any including derivative claim 13-21-102.5(3)(a), 6A claimant, other shall be attributable to ...; ambiguous injury except We found this statute on its noneconomic loss or if, respect cap upon good face with [the “whether is cause shown court 23. We note that Court did not review those factual find- Supreme Doctor's Associates was found ings the trial court because were not in the time dispute of the FAA. Doctor's to fall within the scope the case reached that level. Assocs.,-U.S. at-, at 1654. 116 S.Ct. A. light cap unfair determines earnings and medi- of lost the total amount law, collateral source rule At common the damages, in other added to expenses cal indemnity “compensation or provided that may then award dam- court case the which by injured party from a collateral received $1,000,000cap.] ages in excess source, wrongdoer wholly independent of the contributed, will not he has not and to which statute, damages sec- general Unlike damages otherwise recoverable diminish the on face. ambiguous its is not Halsey, tion 13-64-302 v. 173 wrongdoer.” Kistler from the in her assertion may (1971). correct Evans 722, While 724 Colo. passed 13-64-302 collateral source rule purpose of the “The general dam- spirit as same tort reform receiving prevent the defendant from was to cap on and contains similar ages statute thereby compensation and credit for such way damages, this in no dimin- noneconomic damages to payable amount as reduce the language of the two ishes the fact Rogers, injured & party.” Van Waters Section significantly (Colo. different. Keelan, statutes is P.2d Inc. v. that the “to- unequivocally states 1992). the com “The rule evolved around course of care for a tal amount recoverable ought not notion that a tortfeasor mon sense to noneco- attributable for all defendants” compen the victim was be excused because $250,000, damages shall not exceed nomic source, often insurance.” by another sated patient.” per “present Co., value Quinones Pennsylvania Ins. v. Gen. (10th Cir.1986). 1167, 1171 F.2d case, patient was one In this there “course of care.” was one the common for whom there 13-21-111.6 codifies Section limits language rule, the statute Ev plain and modifies it to The law collateral source $250,000 in non- recovery plain- ans to one total under which a limit the circumstances Accordingly, we affirm damages. compensation for an economic tiff receive double cap on hold that the appeals injury. requires court of reduction of The statute 13-64-302 is damages plain- in section noneconomic the amount a damages tort awards applied “per patient” wholly partially basis. or will be or tiff “has been compensated for his loss

indemnified or corporation, insurance person, other V. injury, company, or fund relation that the court Lastly, Providers claim sustained_” damage, 13-21- or death reversing the trial court’s appeals erred in statute, 111.6, 6A The howev- past against award them reduction of the er, exception” provision contains a “contract already expenses that Kaiser had medical shall not be states that “verdict which health insurer. paid as the decedent’s plain- [the amount reduced Kaiser, by trial court had determined wholly partial- or ... has been or will be tiff] in- decedent’s health providing virtue of compensated by a ly indemnified benefit $40,000 surance, paid approximately had entered into paid as a result a contract $46,000 expenses incurred and in medical plain- paid by or on [the behalf of amount from Ev- It deducted this awarded. added). (emphasis tiff].” expenses, past rea- award for medical ans’s contend that the award for receive a The Providers soning would otherwise that Evans expenses should be reduced past medical recovery. court of re- double paid previously as the versed, payment of the the amount holding that Kaiser’s They argue that the con- decedent’s insurer. expenses fell within the decedent’s medical 13-21-111.6, exception apply this case tract does exception” “contract of section judg- is itself liable for the because Kaiser and thus should not have Ricke, Evans, Bodak and ment Nurses jury award. deducted from the been 12, supra. The Provid- explained in footnote court of reverse the 902 P.2d at 876. We for the contract that the rationale ers assert appeals, and remand for modification payor under the exception vanishes when opinion. judgment consistent with this dent, entity respon- including expenses contract is the same as the one already medical judgment, sible the ultimate because paid by the insurer pay under gains application of the payor no windfall provisions of the policy. insurance The court Rather, payor rule. collateral source plaintiff held could not recover those once, plaintiff pays the sums and the receives expenses already which the had paid insurer support position, them once. In of their policy under the because insurer was Providers cite three Tenth Circuit cases: both a defendant and a collateral source. (10th States, Mays v. United F.2d 976 Quinones, 804 F.2d at 1171-72.24 Cir.1986); Quinones Pennsylvania Gener- (10th Co., Cir.1986); al Ins. 804 F.2d 1167 B. States,

and v. Steckler United 549 F.2d (10th Cir.1977). Kaiser was the medical insurer for Steckler, plaintiff a claim the filed $40,000 the paid decedent thus the in against government the federal under the expenses expenses medical at time the those alleging Tort Federal Claims medical were incurred. Kaiser is hable also for the malpractice part on the of the Ad- Veterans judgment against consisting the nurses of in Hospital ministration Denver. The circuit judgment. 35% of total question, the federally court of that fund- held the therefore, is the extent Kaiser’s portion plaintiffs Security of ed the Social dual role entitles the Providers to an offset payment benefits was not a collateral source expenses for previously paid. medical We against and should therefore be offset the disagree with the Providers’ assertion that plaintiffs judgment against the United requires section that 13-21-111.6 the award Steckler, States. 549 F.2d at 1379. expenses for medical be offset the entire Mays, similarly plain- the court held that the $40,000 paid that Kaiser as the decedent’s against tiffs tort verdict the United States Rather, health requires insurer. the statute be should reduced the dollar amount of only portion offset of of the the medical plaintiff already benefits the had received expenses award for which Kaiser is hable on from the Civilian Health and Pro- Medical behalf of the defendant jury nurses. The (CHAM- gram of the Uniformed Services that determined Nurse Bodak was 25% at PUS). Steckler, Basing its conclusion the fault and that Nurse 10% at Rieke was fault. court reasoned the that CHAMPUS benefits Kaiser is therefore hable for a cumulative did not come from a source collateral to the judgment and, accordingly, 35% of the 35% United States because the fund CHAMPUS expenses As medical award. the dece solely government, was financed the insurer, $40,000 paid dent’s health has Kaiser plaintiff. Mays, no contribution from the $46,000 expenses of the medical that the Finally, Quinones, at F.2d 977-78. Thus, jury pursuant awarded to court examined a Evans. plain- situation which the tiff, 13-21-111.6, $40,000 injured by motorist, paid an uninsured filed 35% of against against $46,- properly suit his own insurance seek- Kaiser is carrier offset ing damages injuries acci- portion suffered award. of medical ex- argue deny operation require § 24. The that Providers also offset would Kai- places posi- engage unnecessary case Kaiser in the nonsensical ser to in an and circular having subrogated against payment money tion of itself claim would first because it have tо then, accepted liability judgments pay judgment against since it has nurses and statute, pursuant recoup money the nurses in this case. Section to the 13-64- its for the (1996 Supp.), subroga- expenses judgment. addresses out medical of that In this however, case, rights malpractice notify in medical suits. Section Evans did not Kaiser of the 13-64-402(1) plaintiff 13-64-402(1) requires in a medical suit Kaiser did under not file 13-64-402(2), presum- to send written action notice with the court under party payors expenses. ably action to originally third of medical Kaiser because named as a notice, Nevertheless, receiving party payor After third must defendant. rogation rights because Kaiser's sub- trial, right asserting then file notice with the court were at its not determined subrogation portion in order recover the cost of the have because we determined expenses any judgment expenses medical out awarded. attributed medical award offset, § fore, There- nurses must we decline to decide hypothetically subrogation potential rights. that Providers are correct issue as to Kaiser's of the award pay portion that amount to Dr. Guidot and penses award attributed however, CPMG, portion it falls are is offset because for which liable. The not Dr. exception expenses of the statute. award for which Guidot the contract medical within liable the contract and CPMG are falls within analyzed comprehensively sec- This court and thus exception of section 13-21-111.6 exception in and its contract tion 13-21-111.6 is not not be offset should because Keelan, Rogers, & Inc. Van Waters portion. liable for (Colo.1992). case, de- In that P.2d 1070 for tort an award moved have fendant is with the Tenth Our conclusion consistent disability amount of damages reduced Quinones, opinion where Circuit’s had received plaintiff benefits ‘excusing’ [the that “we court stated are pension plaintiffs employer’s through the forego liability we insurer] when the contract from determined that fund. We case; it has source in this collateral rule entered into derived was which the benefits plaintiffs] past completely reimbursed [the plaintiff his paid both the expenses. goal rule’s Just as the plaintiffs behalf. employer on twice, though plaintiffs of- not to reimburse the award should thus held that We effect, goal that is its is not to ten times its disability benefits not be reduced because Quinones, twice, charge defendants either.” exception of section the contract fell within ease, origi- F.2d at 1172. In this Kaiser Waters, 840 P.2d at 1079. 13-21-111.6. Van nally portion expenses a paid of the medical case, however, easily distin- present charged twice. The and therefore should not be Waters, however, CPMG, guished from Van Van must be Waters. Dr. Guidot disability paying required by judgment was not to reimburse the the defendant If the had been offset expenses benefits. award of the medical for which share benefits, of those the defendant the amount were found liable.25 paying por- a have been excused from would award: a that would tion of the result VI. contrary policy collateral source of the policy language public The re- behind Here, has al- Id. at Kaiser statute. 1078. agreements in quirements for arbitration expenses full as the ready paid the medical (1996 Supp.), of 13-21-111.6 decedent’s insurer. If section protect un- patients is to the HCAA to apply, to Kaiser be entitled

were would knowingly involuntarily waiving their against any the medical portion offset rights in It that this to sue court. is clear judgment which would enter expenses for policy apply agreements to all is intended to appeals against nurses. court of The provide for the of medical deny application exception of the contract pro- malpractice claims health care any expenses that Kai- offset of medical Thus, must viders. recovery for paid results in ser has a double of section 13- with contrary to the This result is also Evans. Kaiser, though entity 64-403 even which 13-21-111.6, is to limit goal of section negotiated of the on behalf recovery. [common law] double “The Providers, sep- operates under a as an HMO applicable source not in collateral rule was statutory and regulatory arate scheme. compensation in plaintiffs situations which a Id. at was attributable the defendant.” $260,000 damages cap on The noneconomic is no that section 13- 1074. There indication in in section 13-64- medical suits changes 21-111.6 this intent. applied Supp.), 6A must be C.R.S. Alternatively, expenses plain language if per patient. medical of section significantly amount differs from the lan- award were to be offset the entire statute, general previously guage damages then Dr. Guidot sec- paid, that Kaiser 13-21-102.5, (1987), having to 6A and thus and CPMG would be excused from tion C.R.S. rights may supra, subrogation set forth we 25. The issue of the reasons in footnote Kaiser's appro- expenses as to the in the decline to reach conclusion arise context of the subrogation. paid by priateness and CPMG. For award to be Dr. Guidot reasoning in General Electric Co. the circumstances of Assuming, our this case. Niemet, (Colo.1994), arguendo, in 866 P.2d does broad dictum Miller in unique exception fact apply to section 13-64-302. establishes to tradi- principles standing purposes tional Finally, excep- purpose contract participation appeals direct of trial court 13-21-111.6, in section judgments,1 neither the nor decision the sen- tois ensure that a defendant does not receive applicable tence is efforts par- Kaiser’s by avoiding payment damages a windfall ticipate party proceed- this certiorari plaintiff foresight had the because ing. majority recognizes effect this insurance, purchase or enter into a contract Maj. op. n. I agree distinction. at 1222 plaintiff compensatеs injury majority’s with the conclusion Kaiser’s When, however, caused the defendant. petition rehearing failure to file with payor compensation pursuant appeals precludes partici- the court it from plaintifPs the contract is also liable for the pating proceeding. Maj. certiorari op. judgment, the rationale for the contract ex- 1223; (1987); ception case, disappears. such a offset 52(b); Group, C.A.R. see Farmers Inc. v. pursuant required. to section 13-21-111.6 is Williams, (Colo.1991). 428-29 opin- We thus reverse the court of vitality, its Whatever our dictum Miller is respect expenses ion to the medical my view irrelevant to the circumstances award and remand with directions to return present. here case to court the trial for modification opinion,

consistent with this and otherwise J., LOHR, joins ‍‌‌​​‌‌‌‌‌​‌‌‌​​​​​​​‌​‌‌​​‌‌​​​​​‌​​​‌​‌‌​‌‌‌​​​‍in this concurrence and affirm. special concurrence. concurring Justice MULLARKEY in part KIRSHBAUM, J., specially concurs and dissenting part: and

concurs, J., LOHR, joins in the agree I with majority’s the conclusion that special concurrence and concurrence. Colorado, Kaiser Foundation Health Plan of J., MULLARKEY, in part concurs (Kaiser) may Inc. not reenter the case for part. dissents purposes. respectfully certiorari review I dissent, however, majority opinion from the concurring Justice KIRSHBAUM holding parties required not are to specially concurring: dispute their arbitrate because the “Kaiser join majority’s I opinion Agreement” with executed between Kaiser and exception portion of that of Part II thereof the decedent Michael Evans must Clark, applying our Miller v. 144 with of decision the arbitration conditions section 13- 431, (1960), 432, 965, 64-403, P.2d to Supp.) Colo. 356 966 of the Health Olson, Community Colleges legal questions, important See State Bd. or however interest- 429, (Colo.1984); Wimberly 687 P.2d v. Et- 435 injuriously ing, affecting to but correct errors 163, 168, 535, tenberg, 194 Colo. 539 P.2d litigation. rights party Only of some to Miller, (Colo.1977). guardian we In held that a aggrieved parties may appeal. ‘ag- The word probate repre- appointed by ad litem court to grievance....” grieved’ refers to a substantial " ” persons legal disability' sent ‘all in an under comments best These are at inconsistent standing intestacy proceeding did not have to quoted with the statement from Wilson v. Board prosecute probate judg- appeal of court’s 100, 100, 1088, Regents, 46 Colo. 102 Pac. Colo, Miller, 432, ment. at at 966. upon appear to have doing, three-judge department In so a of this only ag- been to based. Wilson we referred following court made the observations: grieved aggrieved persons. parties, not Further- party One of two must be tests met before a more, the two sentences in Miller are inconsis- may prosecute writ of court. a error to this applicable tent. The first sentence states a test party a He must either be must or he action only “party” prosecute who a to а seeks writ person substantially aggrieved a be disposition The second commences As error. sentence of the case the lower court. "he," Regents, pronoun only was stated in v. Board Wilson which can refer Colo. 1088: 102 Pac. precedent "party," noun but then refers either Appeals "... not are allowed for the mere person. party a a or purpose present delay, purely abstract which oth- (HCAA). and financial burdens By ministrative its own Availability Act Care by the Providers. be borne only to erwise would applies 13-64-403 language, section for ren- return, responsible the Providers are patient and a “health agreements between to Kaiser’s members. dering medical services not in- legislature did provider.” care Managed Kongstvedt, The Peter R. Organizations See Maintenance clude Health (1993). Thus, Handbook 17-21 pro- Health Care (HMOs) of “health in the definition responsibilities of an HMO and the roles vider,” indication that is no and there inextricably providers are health care apply to its HCAA to intended the legislature applicability and the together legislature en- bound contrary, the HMOs. On be deter- Providers cannot concerning dispute HCAA to the separate statute acted considering applicability without and that mined to HMOs specific that is resolution to an HMO. Colora- the HCAA this ease. See should control statute (Coverage Coverage Care do Health outset, recognized it must At the -428, Aсt), §§ Part challenged the us lawsuit now before provi- rigid arbitration Applying the only grounds on the Agreement an HMO undermines of the HCAA to sions require- comport technical it did not with the Coverage Act. expressed intent no claim that There is ments of the HCAA. Moreover, holding contrary majority’s the clause’s did not understand the decedent support undeniable to the state of Colorado’s agree- that he entered into the provisions, resolution, general, dispute of alternative duress, his survivors are or that ment under clauses, specifically. Because not the decedent’s bound issue, I my disposition of the arbitration eight Kai- disputes. arbitrate Section ad- two issues not reach the other would majority reproduced in the Agreement is ser by majority. dressed “[a]ny claim clearly states that opinion and duty alleged of a inci- arising from violation I. ... shall be submit- dent to this Maj. op. binding ted to arbitration-” majority that since Kaiser is contends Furthermore, “Application n. 8. proceeding, and since party to this Enrollment”, Membership which was Kaiser, surviving claims there are no decedent, clearly states that signed by the the issue of whether it need not consider money damages asserted “any claim for Maj. provider. is a health care Kaiser itself personal representatives member’s heirs this, majority to By appears op. at 1226. the in- binding to must be submitted concerning in- arguments the conclude accounts, By trial.” Id. all stead of a court un- to HMOs are applicability of the HCAA requirements failing to meet the other than Providers, the and not persuasive when the HCAA, agreement this was a valid of the HMO, arbi- seeking protection of the are the to submit between Kaiser and the decedent any agree- By logic, agreement. tration binding to arbitration. claims the HMO is an enrollee and ment between brings long suit so as the enrollee irrelevant public policy of the State of Colorado The This provider and not the HMO. against the disputes clearly encourages of the resolution seriously misinterprets and both conclusion through Mountain Plains Con arbitration. legal relationship between undervalues the structors, Torrez, 928, Inc. v. 930 contracting providers. and its an HMO Court, (Colo.1990); 776 Firelock v. District 1090, (Colo.1989)(“By expediting 1099 statutory It P.2d special An status. HMO has promotes adversary process, arbitration the practicing medicine is not deemed to be thereby speeding quicker of cases relat- settlement exempt provisions of laws is decreasing up § to the courts 10-16- access ing practice of medicine. (1994). parties.”) Even Colorado com 421(3), only costs to the HMOs can 4A C.R.S. consistently recognized the benefits contracting law mon provide health care services v. State Farm Mut. of arbitration. Wales providers. care employing with or health 360, 363, Co., (1994). Colo.App. 10~16-403(l)(c), an Auto. Ins. § 4A As C.R.S. (1976). In the Colorado HMO, contractually the ad- P.2d assumes legislature the use оf this form of anee for care endorsed institutions and li- professions.” § dispute enacting Uniform censed medical care resolution 13-64- (1996 -221, §§ to Supp.). Among Arbitration Act. 18-22-201 6A 6A C.R.S. other (1987). fact, express things, In legislature one of the C.R.S. intended act to purposes agreement of the HCAA was to stem the tide ensure “that be a voluntary agreement of claims and to facilitate the patient use between a and a controlling 13-64-403, rising provider.” § of arbitration a means of health as care 6A 13-64-102, (1996 § HCAA, 6A Supp.). health care costs. C.R.S. C.R.S. Under the (1996 Supp.). protect provider patient order to these order for a health care goals, any right agree binding arbitration, to agree- statute limits to to binding strictly provisions contract for arbitration should be ment must conform to the strictly 13-64-403(2), § construed. section. 6A C.R.S. (1996 Supp.). majority sufficiently The has The issue now before the court arises be- explained requirements I these and believe it apparent cause of an conflict between the detailed, fair to describe them as if not Coverage Part 4 Act and the HCAA. rigid. Coverage initially Act was enacted 1973 as Organiza- Health Colorado Maintenance The conflict between these two statutes is (HMO Act) 10-17-101, respect resolution, tion Act dispute 4A clear. With (1987). repealed arbitration, The act C.R.S. and which would include the Cover- part age Health requires develop reenacted Care HMOs to “reason- -428, Coverage §§ proсedures” Act. 4A able which have a “clear and (1994). Act, Coverage Under description.” § C.R.S. Col- understandable 10-16- (1994). 407(l)(d), operate subject general HCAA, orado HMOs 4A C.R.S. The authority hand, requires of the Commissioner Insurance. the other that an arbitration (1994). § respect With four paragraphs specif- include resolution, dispute Coverage language, printed Act re- ic of which most must be quires adopt, ten-point, type. § the HMO and submit for bold-faced Insurance, approval majority to the Commissioner con- procedures” resolving “reasonable enroll- tends that the two acts complaints contradictory ee concerning health care ser- are and that HMOs must (1994). 10-16—409(l)(a), Maj. op. vices. 4A C.R.S. both.1 at 1228. system essence, purpose complaint majority’s replaces holding re- quired by procedures” section 10-16—409is facilitate “reasonable and un- “clear complaints “concerning description” resolution required health derstandable 10-16—409(l)(a), provisions services.” Act with the restrictive HMOs the This allows flex- of the HCAA. ibility fairly disputes to resolve while still majority’s conclusion that the arbitra- maintaining reasonable costs to their enroll- provisions the to apply tion of HCAA HMOs Furthermore, by ees. requiring that the contrary is also to the determination made plan approved and the reviewed Insur- the of In Commissioner Insurance. Commissioner, Coverage pro- ance the enacted, years four after the HCAA was the prоtection of vides a level not offered to promulgated Commissioner of Insurance a patients practi- private who are treated regulation concerning agreements practice groups. tioners or majority in reproduced opinion. is the Maj. op. general regulation requires

The more HCAA was enacted in at 1227. This express fully purpose protecting 1988 with the to the HMO disclose the terms and adequate availability binding require- “the health continued conditions of the by containing signifi- care ... ment in services the contract and the evidence of VIII(D)(5), cantly increasing coverage. costs of insur- 702-4- Rule 3 C.C.R. part my opinion, compliance theoretically possi- 1. As I discuss in II. whether such ble, is infra strong argument legislature a Providers make an HMO there is no indication that the Regardless comply apply cannot with the HCAA. intended the HCAAto to an HMO. pass- This much into the HCAA. (1992).2 too also advise the reads The HMO must 7-2 (2) of 13-64-403 ing reference subsection rights duties under her of his or enrollee insignificant to be the basis slight too is any complaint. at the time of legislature major decision policy for a provi- Agreement arbitration Id. The to with the HCAA. requiring HMOs court meets Com- before this sion now adminis- As the requirements. missioner’s statute, it fundamental construing a charged with enforcement official trative and consid- of the act be read that the whole Act, regu- Coverage consistent, the Commissioner’s context, a harmonious ered appropri- latory interpretation is entitled given to all its effect must be and sensible Molybde- Enters., v. Lucero Climax parts. ate deference. Martinez v. Continental (Colo.1987). (Colo.1986). case, Co., 732 P.2d 642 In this num P.2d clearly legislature’s states that HCAA interpretation I find the Commissioner’s an protect the voluntariness of intent was to nothing in the HCAA persuasive because “patient a health agreement between by necessary implication ad- expressly or 13-64-403(1), § provider.” 6A C.R.S. care plain language of sec- HMOs. The dresses (2)’s (1996 Therefore, ref- Supp.). subsection 13-64r-403(l) of its application limits the “any agreement” should be con- erence to providers.” care requirements to “health referring any agreement be- strued as (1996 13-64-403(1), Supp.). The § 6A C.R.S. provider. care patient and a health tween provider” as a “health care statute defines statutory Generally, specific by the any person licensed or certified provision “unless the prevails general over a health care and to deliver state of Colorado in time and the general provision is later clinic, dispensary, or health fa- health intent that legislature has manifested a clear of Colorado. cility the state licensed prevail.” Scholz general provision should corpo- any professional The term includes P.C., Pathologists, P.2d Metropolitan entity professional com- ration or other (Colo.1993). certainly aware While providers as health care prised of such providers” care use “health HMOs permitted by the laws of this state. services, legislature supply failed (1996 13-64-403(12), Supp.). § 6A As C.R.S. 13-646403 of the to mention HMOs HMO, legislatively created Kaiser is a § 13- it was enacted HCAA when power provide services entity with the 64-403, It also left contracting employing or “health care with Coverage unchanged Act’s (1994). providers.” dispute procedures” for reso- for “reasonable licensed to deliver Kaiser is not certified or repealed that statute was as lution when care, dispensary a health health nor is Kaiser part 4 of the HMO Act and re-enacted Therefore, an HMO facility. while seq., Coverage Act in 1992. 10-16-401 et pro- employ “health care contract with my if opinion, viders,” a “health care the HMO itself is not provision of the legislature had intended this own definition. provider” under the statute’s HMOs, it would have apply HCAA majority applicable to finds the HCAA specifically included HMOs the statute. Kai- only by ignoring the fact that provisions an HMO of sections 10-16-407 Since provider” spe- as defined Act are ser is not a “health and 10-16-409 of the contracts, holding by that act. and HMO Consistent cific to HMOs majority provi- appeals, general infers from the more the court of should control over (2) 13-64-403, refers to of the HCAA. sions of section 13-64-403 subsection provision of medical “any agreement for the II. services,” irrespec- applies that the statute argued the re- Providers have capacities parties to the tive of the view, quirements of section 13-64-403 my this construction agreement. In (1996 Supp.) the Commissioner regulation of the HCAA. If Although did not exist 2. this 1992 expected with the HCAA remains HMOs claim arose in it when the Evans’ Act, such intent would have well as the significant does not reference for the fact it regulations. in the arbitration § been stated administratively are unworkable HCAA applied delivery

when to health care an The PEOPLE of the State of Providers, pro- According HMO. this Colorado, Complainant, contemplates that indi- vision HCAA agreements vidual arbitration are to be provider with a signed particular specific Anthony THEODORE, M. Therefore,

medical services mind.3 Attorney-Respondent. argue appears Providers that the HCAA sign require the a new enrollee No. 96SA351. agreement every time he or she new has a illness, nurse, Colorado, Supreme physician Court of sees a new consultation, En specialist for a Banc. referred or visits response con- different clinic. to these Nov. cerns, majority concept” states that “in why agreement is “no reason a new there required specific

would be each op. Majority

service.” n. 20. The

majority “an concludes that initial enrollee,

between Kaiser and with one period, appear suffi-

rescission would to be subsequent

cient all medical services.” interpreting

Id. While this dicta the HCAA assuage serve to some fears about

impact of operating the HCAA an HMO’s

budget, majority’s analysis illustrates applied

that the HCAA cannot to an HMO aggressive

without an construction of the act. support

This fact lends further to the conclu- legislature

sion did not intend

HCAA cover HMOs.

III. presents question

This case a difficult

statutory be, interpretation that can has but been, expressly legisla- resolved my view, legislature’s

ture. stated flexibility protecting

concerns with both

of HMOs and supporting the use of arbitra- disputes resolve ‍‌‌​​‌‌‌‌‌​‌‌‌​​​​​​​‌​‌‌​​‌‌​​​​​‌​​​‌​‌‌​‌‌‌​​​‍should lead court uphold Agreement. the Kaiser ma-

jority’s decision is not consistent with these

important stat- concerns and rests on a weak

utory legislative inference as a declaration of

policy. respectfully I therefore concur

part and in part. dissent notice");

3. See rescinded written 403(3), 13-64- see also Supp.)("Once signed, agreement govern Supp.)(requiring shall subsequent provision given all of medical services written notice physician”). the rescission "to the signed which the until or unless

Case Details

Case Name: Colorado Permanente Medical Group, P.C. v. Evans

Court Name: Supreme Court of Colorado

Date Published: Nov 12, 1996

Citation: 926 P.2d 1218

Docket Number: 95SC270

Court Abbreviation: Colo.