Medical Malpractice Arbitration

We Handle Cases in Lakeland and Winter Haven, Florida

Voluntary Binding Arbitration In Florida Medical Malpractice Cases

Many doctors and hospitals have begun to demand that patients sign arbitration agreements as a condition of receiving medical treatment.  Further, many people do not realize that they are not required to sign an arbitration agreement but sign it anyway at the ER.  Whether you have validly signed a medical malpractice arbitration agreement is a complex question to which the answers may not be clear.  As a result, you may have to retain counsel to litigate this issue in the event that you have a medical malpractice case.

There are a handful of cases that have interpreted medical malpractice arbitration agreements.  As a whole, these cases suggest that any medical malpractice arbitration agreement is not valid if it does not provide all of the same remedies as section 766.207, Fla. Stat. for voluntary binding arbitration.

However, in July 2018, Circuit Judge Jose M. Rodriguez issued an order finding the medical malpractice arbitration caps unconstitutional in Defranko v. Poole, Case Number 16-CA-16511, in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida.  An appeal on this issue is expected.

Admission Of Liability Required And Types Of Damages

Under section 766.207, the defendant medical provider must admit liability.  Thereafter, the issue becomes what damages are the claimant entitled to and what is the value.  The different types of damages available in medical malpractice arbitrations are:

  • Net economic damages, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity, offset by any collateral source payments
  • Noneconomic (pain and suffering) damages limited to a maximum of $250,000, and shall be calculated on a percentage basis with respect to capacity to enjoy life, so that a finding that the claimant’s injuries resulted in a 50-percent reduction in his or her capacity to enjoy life would warrant an award of not more than $125,000 noneconomic damages
  • Damages for future economic losses shall be awarded to be paid by periodic payments pursuant to section 766.202(9) and are offset by future collateral source payments
  • Punitive damages shall not be awarded
  • Interest on all accrued damages
  • Reasonable attorney’s fees and costs, as determined by the arbitration panel, but in no event more than 15 percent of the award, reduced to present value
  • All costs of the arbitration proceeding and the fees of all the arbitrators other than the administrative law judge
  • Jointly and several liability for all damages awarded

Debate Over Whether Arbitration Cap Applies Per Claimant Or Per Incident

Debate exists over whether the noneconomic damages cap is $250,000.00 or $250,000.00 per claimant ((See St. Mary’s Hosp., Inc. v. Phillipe, 769 So. 2d 961 (Fla. 2000) and Lifemark Hosps. of Fla., Inc. v. Afonso, 4 So. 3d 764 (Fla. 3rd DCA 2009)).  Rejecting an offer to go to arbitration results in the same damages minus attorney fees and costs as well as a cap on noneconomic damages at $350,000.00 (see section 766.209, Fla. Stat.).

The case of Plantation General Hospital v. Division of Administrative Hearings and the Estate of Belzi, (Fla. 4th DCA 2018) supported the notion that the St. Mary’s “rule” applying the non-economic damages cap to each claimant was valid in a case that actually went to arbitration, but did not explicitly address whether the $350,000 cap applies in the same manner for cases where arbitration is rejected.

This area of law is so convoluted and complicated that we cannot recommend that anyone attempt to resolve their medical malpractice case without qualified legal help.

Unintended Consequences Of Arbitration

In Samiian v. FPIC, Case Number 1D14-3656 (Fla. 1st DCA December 1, 2015), the doctor’s insurance company offered policy limits and made an offer to participate in a medical malpractice arbitration in hopes of avoiding a large pain and suffering award.  While the arbitration did result in a severe limitation to the claimant’s pain and suffering award, there was a significant exposure due to the claimant’s $2 million in annual income.  This arbitration case resulted in an award of approximately $35 million and an insurance bad faith case.

Challenging The Constitutionality Of The Arbitration Statute

In University of Miami v. Echarte, 618 So.2d 189 (Fla. 1993), the Florida Supreme Court held that sections 766.207 and 766.209, Fla. Stat. are constitutional.  However, more recent developments in Florida law have begun to call caps in general in medical malpractice cases into question.

If you are to mount a challenge to Florida medical malpractice arbitration statutes, you should remember that Fla. R. Civ. P. 1.071 and section 86.091, Fla. Stat. require that you serve either the attorney general or the state attorney in your jurisdiction with a notice to the constitutionality challenge and a copy of the pleading itself raising the challenge.  Failure to do so may result in prejudice to your challenge.

Call Us To See If You Have a Malpractice Case

If you or a loved one has injured by a medical error, you should contact a Lakeland medical malpractice attorney for a review of your case. Our confidential consultation with an attorney is free.

See Our Blog

For recent legal topics in the area of Florida medical malpractice, please check out our personal injury blog or see answers to frequently asked questions.  We represent clients with medical malpractice cases located in the Lakeland and Winter Haven, Florida.

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