Health Care Arbitration Agreements in Tennessee

Civil litigation of medical malpractice and related health care claims is often seen as expensive, slow and unpredictable with potential for excess judgments and reputational damage to health care providers.[1] Amid countless proposals for reform, one currently available option that some health care providers have begun to use is to form agreements with their patients to submit any disputes related to the patients' treatment or care to binding arbitration ("health care arbitration agreements").[2] Despite the availability of arbitration as an alternative to litigation, health care providers may not understand the arbitration process or even be aware that they can form binding arbitration agreements with their patients. This paper discusses health care arbitration in Tennessee and focuses on drafting enforceable agreements between doctors and patients to submit disputes arising from medical care to binding arbitration.

Overview of Arbitration

Arbitration is a method of dispute resolution by which parties agree to submit a dispute to a neutral party for binding resolution.[3] Agreements to arbitrate can be entered into before or after a dispute arises. Once a binding arbitration agreement is entered into, the arbitration process essentially displaces the litigation-based court system for resolution of the dispute. The dispute is resolved by an arbitrator whose judgment is enforced by the court system. Typically, the arbitration process begins with both parties selecting an arbitrator and then the selected arbitrators agree on a third arbitrator who will either serve as the sole neutral decision maker or on a panel of three arbitrators with the other two arbitrators previously chosen by each party.[4] Lists of arbitrators and rules and procedures for arbitration are provided by administrative agencies such as the American Arbitration Association and the National Arbitration Forum.

Discovery and evidentiary standards are governed by arbitration statutes, agency rules and, potentially, by the contract itself. The arbitration agreement may dictate certain rules or it may incorporate the Rules of Evidence used within the court system. The arbitrator usually has a relatively large amount of discretion in conducting discovery and applying the procedural rules. Although arbitration, like litigation, ultimately depends on legal argument, the arbitration hearing is more informal than the traditional court setting. Once a binding decision has been made by the arbitrator, state or federal statutes give courts the jurisdiction to enforce the arbitrator's decision. Arbitration awards are not easily overturned and are often final. Tennessee law provides only narrow grounds for appeal such as when the award was "procured through fraud" or when the "arbitrators exceeded their powers."[5] When an award is given, the prevailing party may utilize all traditional legal remedies, such as obtaining a lien, for pursuing satisfaction of the award.[6]

Advantages and Disadvantages to Arbitration

There are advantages and disadvantages to entering binding arbitration agreements. Generally, arbitration is seen as faster, more predictive, less expensive and less emotionally charged than litigation. Reasons given for these advantages include: arbitration encourages pursuit of meritorious claims, disputes in arbitration usually go to hearing, arbitration utilizes less discovery and procedure, and arbitrators often have more expertise in the subject matter of the dispute than judges and are less likely to be swayed by emotions than are jurors.[7] Another perceived advantage of arbitration is the availability of confidentiality provisions that can protect the parties' reputations.

Systematically, arbitration is seen as a way to curb the rapid expansion of health care costs by lowering costs associated with litigation that lead to increased malpractice insurance premiums for health care providers. Arbitration may lower these costs because it requires less time for resolution, less expenditure for discovery and is generally more efficient than trials.[8] Arbitration awards may also be less susceptible to extremely high awards that are occasionally given by juries. Although these arguments may be logically persuasive, at this point it is not possible to determine conclusively whether arbitration can lower health care costs because of the absence of hard data to evaluate these arguments.

Criticisms of arbitration include the difficulty to have arbitration awards overturned by a court, complaining parties may receive smaller awards, arbitrators may lack neutrality, arbitration may impose cost barriers to complaining parties, and arbitration lacks the procedural rules imposed in traditional litigation to protect parties' rights.[9] In addition to these criticisms, arbitration agreements in the health care context are specifically criticized for being unconscionable contracts of adhesion that health care providers can use to overreach their patients.[10]

The most vocal critics of health care arbitration agreements have been members of the plaintiff's bar.[11] A view typified by the plaintiff's bar is that "pre-dispute arbitration agreements in the health care context are inherently unfair and should not be enforced."[12] These criticisms often focus on the process of how the agreement is entered into rather than the effect of the arbitration agreement itself.[13]

There have been few empirical studies on outcomes in health care arbitration cases, but the data that does exist does not indicate that arbitration inherently favors health care providers.[14] Also, it is possible that arbitration may favor the patient in some ways. Kaiser Permanente, an HMO that requires members in certain states to arbitrate medical claims, estimates that patients win more often in arbitration than in the courtroom.[15] On the flip side, the arbitration awards may tend to be smaller.[16] The only thing that seems to be clear from the data available is that more data needs to be collected on arbitration outcomes to determine how they compare to trial outcomes.

Although it is debatable whether arbitration provides more or less favorable outcomes to complaining parties, arbitration agreements are a two-way street " not only does the patient give up his or her right to trial, the health care provider does as well. Thus, a health care provider may be susceptible to any of the perceived disadvantages of the arbitration process, such as less discovery or lack of review, as much as a patient. Also, a doctor who wanted to bring an action against a patient for defamation, failure to pay fees, or any other reason related to the medical services provided would be subject to any of the perceived "inherent unfairness" associated with arbitration. Although claims by health care providers may not be as common as claims against them, the mutual agreement to arbitrate does suggest at least some fairness in the agreement between the parties. A complete discussion of whether health care arbitration agreements should be allowed is beyond the scope of this article; however, that argument remains mostly philosophical because health care arbitration agreements are enforceable in Tennessee and available to health care providers who choose to use them.[17]

Statutes Governing Arbitration

Binding arbitration is recognized under state and federal law. In 1925, Congress declared a nationwide policy favoring the enforcement of private agreements to arbitrate by enacting the Federal Arbitration Act ("FAA").[18] By enacting the FAA, "Congress ... withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration."[19] Application of the FAA is limited to contracts involving interstate commerce.[20] For contracts involving intrastate commerce in Tennessee, the Tennessee Uniform Arbitration Act applies ("TUAA").[21] Whether a contract is governed by the FAA or the TUAA is an important question due to the differences between the statutes. For example, under the TUAA, contract formation questions are decided by the courts rather than the arbitrator.[22]

The TUAA, like the FAA, does not specifically address health care arbitration agreements and, unlike several other states, Tennessee has not enacted statutes governing such agreements.[23] Although the legislature has not addressed health care arbitration agreements, the Tennessee Supreme Court has addressed the enforceability of such agreements in two contexts: between doctors and patients and nursing homes and patients.[24] In both contexts, health care arbitration agreements were held to not be per se void as against public policy.[25]

Buraczynski and Owens

In Buraczynski v. Eyring, the Tennessee Supreme Court addressed two consolidated medical malpractice appeals that both involved patients who signed pre-dispute arbitration agreements.[26] In one, the patient voluntarily signed an arbitration agreement approximately two months after an operation to replace the patient's knee. The patient also initialed a provision providing for retroactive application of the arbitration agreement. In the other case, the patient signed the arbitration agreement two months before an operation to replace the patient's knee and four months before the patient died from complications. Both patients were presented the agreements on a "take it or leave it" basis where the doctor would have not have continued to treat the patients if they did not sign. The arbitration agreements contained identical terms and bound the potential parties, including the patient's spouse and heirs, on all claims for medical malpractice. The physician was bound by any decision by the arbitrator.

The trial court denied the physician's motion to compel arbitration, and the Court of Appeals reversed. On appeal to the Supreme Court, the patients argued that the arbitration agreements were void for four reasons: (1) public policy precluded the use of arbitration in the health care context; (2) the agreement was too broad because it purported to cover every possible controversy that arose between the doctor and his patient and did not specify any particular procedure or treatment; (3) the agreements were unconscionable contracts of adhesion; and (4) in the case of the patient who signed the retroactive provision, the arbitration statutes did not authorize retroactively binding agreements.

The Tennessee Supreme Court affirmed the appellate court's decision. It held that despite the acknowledged special nature of the medical relationship, there was no public policy reason why arbitration should not be as good in medical relationships as it is in other commercial relationships. As for the breadth of the agreement, the court held it was not over broad because it would be too burdensome and impractical to require doctors to renew arbitration agreements each time there is a variation in treating the patient.[27]

Although the court recognized that the agreements were contracts of adhesion, it held they did not contain such oppressive terms as to render them unconscionable. For the patient with the retroactive provision, the court held that it was enforceable because the patient agreed to submit any future controversy arising from care to arbitration and the TUAA explicitly provides that private agreements between parties to submit to arbitration "any controversy thereafter arising ... are valid, enforceable, and irrevocable save upon grounds as exist at law or in equity for the revocation of any contract."[28]

In Owens v. National Health Corp., the Tennessee Supreme Court addressed the appeal of a conservator of a nursing home patient who brought a medical malpractice suit against a nursing home. Three weeks before being admitted to a nursing home, the patient executed a power of attorney. Upon admittance to the nursing home, the attorney-in-fact signed a contract with the nursing home that included a section with an arbitration agreement. Six months after the arbitration agreement was signed, the conservator of the patient filed suit against the nursing home for malpractice and other related claims.

The trial court denied the nursing home's motion to compel arbitration on the grounds that the power of attorney did not give power to sign the arbitration agreement. The Court of Appeals reversed and remanded to the trial court with instructions to enter an order compelling arbitration. The Supreme Court of Tennessee affirmed the judgment in part and vacated in part. The Court affirmed the part of the judgment holding that the power of attorney gave power to sign the arbitration agreement but vacated the part of the judgment instructing the trial court to compel arbitration. The Court held that health care arbitration agreements are not per se against public policy and do not violate federal regulations that restrict nursing facilities from charging additional fees or consideration upon admittance to persons eligible for Medicaid. Due to the limited factual record, the Court remanded the case to the trial court to determine whether the arbitration agreement was unconscionable and therefore unenforceable.[29]

The Nitty-Gritty: Drafting Enforceable Health Care Arbitration Agreements

Although the Tennessee Supreme Court recognized the validity of health care arbitration agreements in Buraczynski and Owens, it noted that "courts are reluctant to enforce arbitration agreements between patients when the agreements are hidden within other types of contracts and do not afford the patients an opportunity to question the terms or purpose of the agreement."[30] Health care arbitration agreements receive heightened scrutiny because they involve the patient-doctor relationship and are usually contracts of adhesion.[31] A contract of adhesion is "a standardized contract form offered to consumers of goods and services on essentially a 'take it or leave it' basis, without affording the consumer a realistic opportunity to bargain and under such conditions that the consumer cannot obtain the desired product or service except by acquiescing to the form of the contract."[32] Even if an arbitration agreement is a contract of adhesion, it is enforceable when the parties "actually bargained over the arbitration provision or ... [when] it was a reasonable term under the circumstances."[33] To determine whether an arbitration agreement is enforceable, the courts consider all the facts and circumstances of the particular case.[34]

Because Tennessee courts carefully scrutinize the facts and circumstances of cases involving health care arbitration agreements, attorneys must carefully draft these agreements to ensure enforceability. The rest of the article addresses specific aspects and provisions that attorneys should consider when drafting health care arbitration agreements.

Who Signs the Arbitration Agreement?

The arbitration agreement should be signed by both the patient and the health care provider. Furthermore, the agreement must mutually bind the health care provider and the patient to be enforceable; thus, it must state that any claims brought by either party will be submitted to arbitration.[35] The patient, in some situations, may be unable to sign due to physical or mental incapacity. Health care arbitration agreements are often challenged on the basis that the signature is ineffective due to incapacity or lack of authority by the signer.[36]

As discussed above, the plaintiff in Owens argued that a durable power of attorney to make health care decisions did not give power to enter into an arbitration agreement. The court in Owens rejected the plaintiff's attempt to distinguish arbitration provisions as legal decisions beyond the scope of the attorney-in-fact's power to make health care decisions. The court noted that signing a contract for health care is itself a legal decision and that drawing the distinction argued by plaintiff would "defeat the purpose of a durable power of attorney for health care."[37] In addition to an attorney-in-fact, a person with implied actual authority or express actual authority may also sign. Even if the person who signs does not have authority, the agreement will still bind the patient if he or she later ratifies the agreement and it is otherwise enforceable.[38]

When Can the Arbitration Agreement Be Signed?

Health care arbitration agreements may be signed before or after treatment or care is given.[39] If signed after treatment or care is given, a retroactive provision should be included and signed or initialed by the patient.[40]

How Should the Patient Be Informed Before the Agreement Is Signed?

In general, a party is presumed to know the contents of a contract he or she has signed.[41] Even a patient who cannot read is not excused from an arbitration agreement that he or she voluntarily signed.[42] When an arbitration agreement is a contract of adhesion, however, the party seeking enforcement must show that the parties "actually bargained over the arbitration provision or that it was a reasonable term under the circumstances."[43]

The easiest way to avoid disputes over whether the agreement was bargained over or whether its terms are reasonable is to avoid making the contract one of adhesion by clearly stating in the agreement that signing it is not a precondition to treatment by the health care provider. In Reagan v. Kindred Nursing Centers, for example, the court held the arbitration agreement was not a contract of adhesion because "[t]he signature page clearly provides that execution of the Agreement is 'not a precondition to the furnishing of services."[44] Although some patients may refuse to sign the agreement, most patients would probably agree to sign as did the patient in Reagan. Even if only a minority of patients agreed to sign, a health care provider may decide that the certainty of some optional agreements outweighs the uncertainty of all mandatory agreements. Essentially, whether to make an arbitration agreement optional or mandatory is a decision that will need to be made by the health care provider itself.

If the health care provider wants the arbitration agreement to be a prerequisite for treatment, the availability of other health care providers that provide the same services in the same area should be verified and their availability should be stated in the arbitration agreement.[45] When treatment is predicated on acceptance of the arbitration agreement, the courts look carefully to how the agreement was entered into to determine if it was actually bargained over or if the arbitration agreement is a reasonable term under the circumstances. In Hill v. NHC health care/Nashville LLC, the court held that an arbitration agreement presented on a "take it or leave it" basis was unconscionable when the patient was under pressure of medical circumstances to obtain admission, the arbitration and waiver of jury trial provisions were never discussed, no explanation of the arbitration process was given, and the admissions employee who went over the contract with the patient did not know how arbitration worked.[46]

Similar to the court's holding in Hill, the court in Howell v. NHC Healthcare-Fort Sanders Inc. held unenforceable an arbitration agreement when the patient had to be admitted to the hospital expeditiously and the admission agreement had to be signed first and the patient's husband could not read and nursing home representatives did not adequately explain the provision that waived the patient's right to a jury trial.[47]

Based on the holdings in these cases, health care providers who make acceptance of an agreement to arbitrate a precondition of admission should train admissions staff to understand the basics of arbitration and implement procedures to ensure that all patients are fully informed of the implications of agreeing to arbitration " most importantly, the waiver of right to a jury trial. If a health care provider is unsure of whether a patient received the necessary information before signing, it should provide the information and request the patient to ratify his or her decision to agree to arbitration.

How Should the Arbitration Agreement Be Drafted?

Distinguishable Text. The arbitration agreement should have key provisions printed in bold, a larger font, or otherwise made distinguishable from the main text of the agreement.[48] One of the factors in Howell that led the court to hold the arbitration agreement unenforceable was that it was in the same font as the other text.[49] In Buraczynski, a factor that the court used to justify enforcing the arbitration agreement was that it stated in ''ten-point capital letter red type, directly above the signature line that 'by signing this contract you are giving up your right to a jury or court trial' on any medical malpractice claim.''[50]

The arbitration agreement should include an explanation of its purpose and enough information to allow the patient to make an informed decision whether or not to sign it. Arbitration should be defined and the basic process should be described. As previously noted, it is critical that the patient understand that he or she is agreeing to give up her right to a jury trial.

Stand-Alone or Clearly Distinguishable

Although it may be easier for a health care provider to include an arbitration agreement as part of a larger admission agreement, a court is more likely to view a stand-alone arbitration agreement as bargained over and, therefore, enforceable. The court in Howell criticized the arbitration agreement for being "buried in larger admission agreement" whereas the court in Buraczynski emphasized that arbitration agreement was a stand-alone one.[51]

If the arbitration agreement is part of a larger agreement, it should be set out in a way that draws attention to it to ensure that the patient understands it. For example, in Philpot v. Tennessee Health Management Inc., the court held the plaintiff was clearly informed of the terms of the agreement when they were prominently disclosed in the contract documents in several places; the relevant provisions were set apart from the rest of the admission documents and clearly labeled "Arbitration Agreement" on a separate cover sheet; and the acknowledgment and signature block were also set apart, which emphasized that by signing the agreement, the plaintiff was agreeing to arbitration and waiving his right to jury trial.[52]

Allocation of Costs

Costs for arbitration should be allocated in the agreement to avoid placing so much of a burden on the plaintiff that a court finds the allocation unconscionable. In Hill, the court found the cost allocation influenced its decision to hold the arbitration agreement unenforceable. The court found "troubling" the evidence that showed costs by the plaintiff to initiate alternative dispute resolution were "very high, perhaps reaching $18,000 [when] ... the cost to initiate litigation would be considerably less"[53] On the other hand, in Reagan, the court held an arbitration agreement that allocated the arbitrator's fees to the defendant was conscionable.[54]

Although allocating all fees to the health care provider may prevent a finding of unconscionability as to the fees provision, it may raise the potential for appearance of bias with regard to the selection of the trial and arbitrator and it may also encourage claims by patients. On the other hand, splitting the fees evenly may result in the court finding the fees as an unconscionable barrier for a plaintiff to pursue a claim. A possible solution to this dilemma is for the health care provider to allocate some the fees to the patient and to cap or otherwise limit the amount of fees so that the fees for arbitration do not significantly outweigh the fees that would be incurred for litigation.

Another option for costs would be to simply allow for the TUAA provisions to apply, which provide that "[u]nless otherwise provided in the agreement to arbitrate, the arbitrators' expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award."[55]

Choice of Law/Forum

As discussed above, the TUAA and FAA do not provide the same rules and procedures for arbitration and are mutually exclusive of each other. To ensure predictability, the agreement should indicate which law is to apply. The arbitration agreement may also adopt the rules or procedure of independent agencies to govern disputes and the agency to provide arbitration may be named in the agreement. The drafter should ensure that a named agency provides the desired services. For example, AAA announced that after Jan. 1, 2003, it would no longer accept health care cases involving individual patients without a post-dispute agreement to arbitrate.[56] Whatever rules, procedure, or forum is adopted, provisions may be modified in the agreement as long as they are not unconscionable.


Scope

The scope of the arbitration agreement should be clearly stated in the agreement. The agreement may be limited to a specific procedure or may cover all treatment that a health care provider gives to a patient.[57] If the agreement extends to bind the spouse and heirs of the patient, it should be clearly stated.[58] Another way that the scope of the agreement may be limited is by the amount of the claim. For example, arbitration may be limited to disputes where the amount in controversy exceeds the Small Claims Court statutory limits.[59]

 


 

Sample Healthcare Provider Arbitration Agreement

NOTE: Signing this agreement is optional and is not a precondition to treatment or services.

Article 1: Agreement to Arbitrate: The parties to this agreement are Physician and Patient. It is understood that any dispute arising out of treatment or services provided to the Patient by the Physician will be determined by submission to arbitration and not by a lawsuit or other court process except as state law provides for judicial review of arbitration proceedings. Both parties to this contract agree to give up their constitutional rights to have any such dispute decided by a court of law before a jury and instead are accepting the use of binding arbitration.

Article 2: All Claims Must Be Arbitrated: It is the intention of the parties that this agreement bind all parties whose claims may arise out of or relate to treatment or services provided by the Physician including any spouse, heirs and children of the Patient. All terms of this Agreement applicable to the Patient apply equally to any successor or other person who brings a claim on behalf of or arising from the treatment or services provided by the Physician to the Patient.

All claims for monetary damages exceeding the jurisdictional limit of the small claims court must be arbitrated without limitation. Filing of an action in any court by the Physician to collect any fee from the Patient shall not waive the right to compel arbitration of any medical malpractice claim; however, any fee dispute shall be resolved by arbitration following the assertion of any claim against the Physician.

Article 3: Procedures and Applicable Law: A demand for arbitration must be communicated in writing to all parties. The parties will agree upon an arbitration agency within thirty days to provide the procedural rules to govern the dispute. Tennessee law, excluding its conflict of laws provisions, shall provide the substantive law for any dispute under this Agreement.

Each party shall select an arbitrator within thirty days and a third arbitrator (neutral arbitrator) shall be selected by the arbitrators appointed by the parties within thirty days after that. The costs and expenses of the arbitration proceeding, include the arbitrator fees, shall be paid by the parties as determined by the neutral arbitrator's award. Attorneys' fees, witness fees, and other fees incurred by a party for its own benefit shall be paid by that party and may not be allocated to the other party by the neutral arbitrator.

Either party shall have the right to arbitrate separately the issue of liability and damages upon request to the neutral arbitrator.

The parties consent to the intervention and joinder in arbitration of any person or entity that would otherwise be a proper additional party in a court action, and upon such intervention and joinder any existing court action against such person or entity shall be stayed pending arbitration.

Article 4: General Provisions: All claims based upon the same circumstances shall be arbitrated in one proceeding. A claim shall be waived or barred if it would otherwise be waived or barred in a court of law or if the claimant fails to pursue the arbitration claim in accordance with this Agreement.

Article 5: Retroactive Effect: If the Patient intends this agreement to cover services or treatment rendered by the Physician before the date it is signed, patient should initial below.

Effective as of the date of first medical services or treatment. Patient's initials _______

If any provision of this Agreement is held unenforceable, the remaining provisions shall remain in full force and shall not be affected by the invalidity of any other provision.

IF YOU HAVE ANY QUESTIONS regarding this agreement or the arbitration process, please speak to the physician or an admissions staff member.

NOTICE: By signing this contract you are agreeing to have any issue of medical malpractice decided by neutral arbitration and you are giving up your right to a jury or court trial. See article 1 of this agreement.

__________________________________                      ________________________________ Name of Physician                                                       Date                            Name of Patient                                            Date
                      
__________________________________                      ________________________________ Physician's signature               Patient's signature

 


Final Thoughts

Even though the decisions in Buraczynski and Owens left the door open for enforcement of health care arbitration agreements, it is clear from subsequent cases that enforceability ultimately will turn on interpretation of the specific facts of the case and, especially important, how the arbitration agreement is drafted. Although careful drafting can increase the probability that an arbitration agreement will be enforced, the fact-sensitive and discretionary manner by which courts review the agreements makes it impossible to predict with certainty whether an agreement will be upheld upon challenge. Uncertainty with respect to health care arbitration agreements will likely continue in Tennessee unless the legislature acts to define the parameters of health care arbitration agreements as some states have done.[60]


Notes

1. Stanley A. Leasure & Kent P. Ragan, "Arbitration of Medical Malpractice Claims: Patient's Dilemma and Doctor's Delight?," 28 Miss. C. L. Rev. 51, 52 (2008-2009).
2. Thomas Metzloff, "The Unrealized Potential of Malpractice Arbitration," 31 Wake Forest L. Rev. 203 (1996).
3. Black's Law Dictionary (8th ed. 2004).
4. James R. Holbrook, "Negotiating, Mediating, and Arbitrating Physician-Patient Conflicts," Clin Obstet Gynecol, Dec. 2008, 51(4):719-30.
5. Tenn.Code Ann.  § 29-5-313.
6. Id.  §29-5-315.
7. Id.
8. Kenneth A. DeVille, "The Jury Is Out: Pre-Dispute Binding Arbitration Agreements for Medical Malpractice Claims," 28 J. Leg. Med. 333, 340 (2007).
9. Id.
10. Leasure & Ragan, supra note 1, at 51.
11. Id. at 62.
12. Laura M. Owings & Mark N. Geller, "The Inherent Unfairness of Arbitration Agreements in Nursing Home Admission Contracts," 43 Tenn. B.J. 20, 22 (Mar. 2007).
13. See Id.
14. Metzloff, supra note 2, at 214-215.
15. Daniel Costello, "After Reform, Kaiser System Still in Spotlight," L.A. Times, June 30, 2003; Edward Felsenthal, "Legal Beat: What happens when patients arbitrate rather than litigate," Wall Street Journal, Feb. 4, 1994, at B1.
16. Id.
17. For a more thorough discussion of the benefits and drawbacks of health care arbitration agreements, see Metzloff, supra note 2; DeVille, supra note 8.
18. United States Arbitration Act, Pub.L. No. 68-401,  § § 1-15, 43 Stat. 883, 883-86. Congress later reenacted and codified the FAA. Act of July 30, 1947, Pub.L. No. 80-282,  § 1, 61 Stat. 669, 669-74.
19. Southland Corp. v. Keating, 465 U.S. 1, 10 (1984).
20. See 9 U.S.C.  § 2 (1994); For an analysis of whether a contract is one "evidencing a transaction involving commerce", see Frizzell Const. Co. Inc. v. Gatlinburg L.L.C., 9 S.W.3d 79 (Tenn. 1999).
21. See Tenn.Code Ann.  § 29-5-301 et seq.
22. Owens v. National Health Corp., 263 S.W.3d 876, 883 (Tenn. 2007).
23. For a list of state statutes governing physician-patient arbitration agreements, see Buraczynski v. Eyring, 919 S.W.2d 314, 317 n. 2 (1996).
24. Id. (holding that pre-dispute patient-doctor agreements are not per se void against public policy); Owens, 263 S.W.3d at 888 (holding that patient-nursing home pre-dispute agreements are not per se void against public policy)
25. Id.
26. Buraczynski, 919 S.W.2d 314.
27. Id.
28. Tenn.Code Ann.  § 29-5-302(a)
29. Owens, 263 S.W.3d 876.
30. Id. at 888 (citing Buraczynski, 919 S.W.2d at 321).
31. Buraczynski, 919 S.W.2d at 321
32. Id. at 320 (quoting Black's Law Dictionary 40 (6th ed.,1990)).
33. Brown v. Karemor Intl. Inc., 1999 WL 221799 (Tenn. Ct.App. 1999).
34. Owens, 263 S.W.3d at 877.
35. Philpot v. Tennessee Health Management Inc., 2007 WL 4340874 (Tenn. Ct. App. 2007).
36. See e.g. id. (lack of authority); Mooring v. Kindred Nursing Centers, No. W2007-02875-COA-R3-CV, slip op. 2009 WL 130184 (Tenn.Ct.App. 2009) (incapacity).
37. Id. at 885.
38. See Mooring, 2009 WL 130184 at 6.
39. Owens, 263 S.W.3d at 877.
40. Buraczynski 919 S.W.2d at 318.
41. Giles v. Allstate Ins. Co. Inc., 871 S.W.2d 154, 157 (Tenn.Ct.App.1993).
42. Howell v. NHC Health care-Fort Sanders Inc., 109 S.W.3d 731, 735 (Tenn.Ct.App.2003).
43. Id. at 733 (citing Brown v. Karemor Intl. Inc., 1999 WL 221799 (Tenn. Ct.App. 1999).
44. Reagan v. Kindred Nursing Centers, 2007 WL 4523092 (Tenn.Ct.App. 2007).
45. See Buraczynski 919 S.W.2d 314 app.
46. Hill v. NHC Health Care/Nashville LLC, No. M2005-01818-COA-R3-CV, slip op. 2008 WL 1901198 at 7 (Tenn. Ct.App. 2008).
47. Howell, 109 S.W.3d at 735.
48. In Doctor's Associates Inc. v. Cassaroto, 517, U.S. 681 (1996), the Supreme Court struck down a state statute requiring arbitration agreements to include a notice in capital letters on the front page of the agreement to be unenforceable on the grounds that it was preempted by the FAA. The holding in Doctor's Association is not inconsistent with the distinguishable text factor here because (1) the FAA only applies to interstate, as opposed to intrastate commerce; (2) even in cases of interstate commerce, the distinguishable text factor applies equally to all contracts, not just arbitration contracts; and (3) the distinguishable text factor is a nondispositive factor used to determine conscionability rather than a statutory prerequisite for enforceability.
49. Howell, 109 S.W.3d at 734.
50. Buraczynski, 919 S.W.2d at 321.
51. Howell, 109 S.W.3d at 734; Buraczynski, 919 S.W.2d at 321.
52. Philpot, 2007 WL 4340874.
53. Hill, 2008 WL 1901198 at 15.
54. Reagan, 2007 WL 4523092 at 3.
55. Tenn.Code Ann.  § 29-5-311.
56. Hill, WL 1901198 at 2 n.1.
57. Buraczynski, 919 S.W.2d at 321.
58. Id.
59. See Philpot, 2007 WL 4340874 at 2.
60. See e.g. 710 ILCS 15/1, et seq. (1996).


S. Spencer Elg S. SPENCER ELG is a recent graduate of the Wake Forest University School of Law. He is an associate in the Chatta-nooga office of Hush Blackwell Sanders LLP.