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I believe that in Florida, the medical malpractice cases of injured patients and their families against careless hospitals and doctors are the most egregious examples of eliminating the right to a jury trial. The actual elimination of those victims’ right occurs in many ways. In this installment of our series we examine the role of medical malpractice caps and mandatory arbitration in that process. Leer in Español.

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Few people know or understand how Florida’s medical malpractice caps on damages work–in fact, many lawyers do not understand the processes. Essentially, malpractice damage caps are legislatively embedded shields that limit the amount doctors or hospitals owe patients or their families no matter how poorly the victims are treated. Moreover, an increasing number of healthcare providers are utilizing arbitration as a tool to prevent patients from even filing lawsuits. Arbitration or ADR (Alternative Dispute Resolution) derails many patients from bringing their medical malpractice cases to a jury. To read more about arbitration agreements in Florida, read my recent Blog for the Huffington Post: “Doctors Use Arbitration Agreements to Escape Jury Trials.”

I have personally investigated thousands of potential medical malpractice cases–ranging from botched plastic surgery, to failure to diagnose cancer, and emergency room delays that have killed fathers and mothers–and I disagree with the purported legislative intent of the Medical Malpractice Act “to provide a mechanism for the prompt resolution of medical malpractice claims through mandatory pre-suit investigation and voluntary binding arbitration of damages [and] to provide substantial incentives to claimants and defendants to voluntarily submit their cases to binding arbitration.”

Instead, I have found that the Medical Malpractice Act creates an expensive and time-consuming legal mountain that injured patients and their lawyers must climb to obtain a legislatively limited right to compensation from either a jury or an arbitration panel. I do not believe that injured patients are treated the same under the law as other people who have been harmed by the mistakes of others. The Medical Malpractice Act as currently interpreted violates the Equal Protection Clause of our Constitution; moreover, a recent Florida Supreme Court opinion limited to $100,000 the amount of compensation that both the parents of McKenzie Samples, a brain-injured infant, could obtain from a doctor who allegedly caused a birth trauma. Read the Supreme Court’s opinion here.

Under the Medical Malpractice Claim, once an injured patient’s lawyer successfully circumnavigates the mandatory pre-suit gauntlet, defendant doctors or hospitals will often “offer” to arbitrate the claim, which amputates the patient’s right to a jury and transplants it into the hands of three “independent” arbitrators, all while simultaneously limiting the amount of money any single claimant can obtain to $250,000 in a single incident for pain and suffering, unlike in the Samples’ case where the $100,000 is for both parents combined.

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Arbitration in a medical malpractice case is simply a legal shell game, which the Florida Supreme Court also has also found to be Constitutional in the case of St. Mary’s Hospital, Inc. v. Philippe, 769 So. 2d 961 (Fla. 2000) and in its interpretation of Florida’s Medical Malpractice Act–(Florida Statute §766.207(7)(b))–that mandates “non-economic damage caps in voluntary binding arbitration to a maximum of $250,000 per incident” and limits the aggregate recovery of all claimants with respect to a single incident or the individual recovery of each claimant. The Florida Supreme Court distinguished Samples from St. Mary’s; since McKenzie qualified under NICA’s no-fault protocol, liability was not in dispute whereas in St. Mary’s the family had to prove liability.

Once health care providers in Florida offer to voluntarily arbitrate in a medical malpractice case, they have essentially admitted liability, which in my opinion puts the plaintiffs in the same legal position as a NICA claimant. The Florida Supreme Court disagrees with me and my interpretation of the effect of the statute, thereby forcing a financially devastated and emotional damaged family to accept an offer to arbitrate with the hopes of a certain and early resolution of their claim. In actuality, the statute only protects the financial well being of hospitals and physicians and those who insure them by preventing jurors from hearing the most horrifying cases.

Moreover, arbitration perpetuates the momentum of tort reform as fewer and fewer jurors–who are most likely also voters–will ever hear the terrifying and heartbreaking stories of the victims of medical malpractice; therefore, they are more likely to vote in favor of further legislation that protects health care providers at the expense of those they harm.

Under arbitration in a Florida medical malpractice case, both the healthcare provider and the injured patients’ lawyers choose an arbitrator, usually a lawyer who has some experience in medical malpractice cases or a former judge. Then the two selected arbitrators pick a third one. These three then sit in the role of both judge and jury and hear the evidence provided by both parties. The procedure often takes place in the office or conference room of one of the selected lawyers, far from the courthouse and the public eye–and most people have no idea this process exists.

In our next installment we will examine Federal Preemption and how these laws are in place to prevent people from even filing lawsuits against certain defendants, such as the manufacturers of pharmaceutical drugs and medical devices.