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More and more Florida doctors are using arbitration agreements to insulate themselves from potentially being dragged in front of a jury in the case of alleged malpractice, a trend I first reported about in the Huffington Post last year in “Doctors Use Arbitration Agreements to Escape Jury Trials.”

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Arbitration agreements are essentially contracts that are often unknowingly signed by patients, sometimes within minutes of surgeries, written in small print, often in a language other than one the patients read, and always without the advice of counsel.

These documents waive the patients’ rights to sue their doctors in court, while limiting the potential recoveries. Instead, any disputes concerning the “medical care rendered, the diagnosis, treatment or care of the patient, payment of surgical fees or any other matter whatsoever” are to be resolved through binding arbitration.

In many Florida cases where a patient has been injured by the medical malpractice doctors, we find that surgical centers, nursing homes, assisted living facilities, and their lawyers have long been using these arbitration agreements as a landmine defense in medical malpractice litigation. The agreements pop up in cases where the plaintiff has no recollection of having signed them and sometimes neither does the doctor. In my several cases over the last 22 years of practicing law in Florida, I have personally sued doctors where neither my client nor the defendant was aware of or understood the arbitration agreement the patient had signed.

WHY ARBITRATION AGREEMENTS ARE WRONG

I have long criticized the use of arbitration agreements in legal claims regarding medical care and treatment between a doctor and his or her patient. First, because I believe the relationship between a doctor and patient is not merely a commercial transaction, like buying cellphone minutes or leasing a car; rather, it is a combined obligation of trust, ethics, and morals, subject to the ambiguous statutory obligation known as the “community’s standard of care.” That standard of care is neither easily defined nor agreed upon by the medical community itself. Therefore, proving a violation of the “standard of care” is not black and white, but subject to interpretation and debate, and therefore it should not be lumped into a dispute resolution process better suited for commercial disputes.

Secondly, any claim in Florida against a healthcare provider must be processed through the legal gauntlet known as the Medical Malpractice Act (MMA), which provides doctors numerous legal advantages over their injured patients, including a shortened statute of limitations and caps on damages–regardless of the injuries or even deaths their misconduct may cause.

Rarely, as a South Florida attorney who sues careless surgeons, do I celebrate any new opinions coming from our Supreme Court or amendments to our statutes, since rarely do they result in improving the rights of the injured or make my job of helping them easier. Today’s news is an exception, and I am happy to report the Florida Supreme Court’s recent opinion in Franks v. Bowers has dealt a painful punch in the face to arbitration agreements and the health care providers who have long hidden behind them.

Joseph Franks underwent surgery performed by Dr. Gary John Bowers at the North Florida Surgeons P.A. During the procedure Dr. Bowers lacerated an external iliac vein, leading to the prolonged hospitalization and death of Mr. Franks.

His wife sued the surgeon and his professional association for medical malpractice and wrongful death. The defendants sought dismissal of the complaint, asking the judge to compel arbitration based upon language contained in the financial agreement her husband had signed prior to the surgery. The effect would be to bypass a jury completely and instead put the dispute in the hands of three lawyers who would serve as both judge and jury to render a verdict. Typically the patient would pick an arbitrator, the defendant would pick an arbitrator, and those two would then select the third, and they would collectively render a binding decision at an arbitration hearing.

CONSTITUTIONAL RIGHT TO A JURY TRIAL

Until now, arbitration agreements have been almost universally upheld by Florida’s courts in medical and nursing home cases, notwithstanding that the effect is a complete waiver of an injured patient’s Constitutional right to access to a jury trial. Arbitration agreements ignore the Florida Constitution’s Article 1, Section 21, which states that the courts “shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” Most arbitration agreements between doctors and patients in Florida still require the patient to comply with all of the pre-suit formalities required in all medical malpractice cases.

Both the trial court and First District Court of Appeal agreed with the doctor and ordered the case to go to arbitration. Mrs. Franks appealed to Florida’s Supreme Court, which reversed the lower courts, striking down the arbitration agreement as violating public policy.

In addition to this absurd language, the arbitration agreement in this case contained a provision under the subheading “Limitation of Damages” that limited the patient’s non-economic damages (pain and suffering) to a maximum of $250,000, calculated on a percentage with a recipe on the “capacity to enjoy life,” pursuant to a formula purportedly to be determined by the three arbitrators. The arbitration agreement gave the following example: “if the Patient’s injuries resulted in a 50% reduction in his or her capacity to enjoy life, this would warrant an award of not more than $125,000”–regardless of the number of claimants.

FLORIDA STATUTORY DAMAGE CAPS IN MEDICAL MALPRACTICE

In comparison, Florida’s Medical Malpractice Act also contains an arbitration provision, which is significantly different as it triggers when a healthcare provider admits liability or responsibility for the malpractice, and in exchange it can cap the amount of pain and suffering damages at $250,000. This is noteworthy because it eliminates the requirement that the plaintiff prove that malpractice occurred–saving a lot of time and money, and uncertainty. However, in my experience, doctors and hospitals admit liability only when their misconduct is so obvious that they are admitting the negligence to reduce the risk of a large judgment.

The difference in this case was that the arbitration agreement foisted upon Mr. Franks took away his significant statutory rights without providing him any of the benefits that are found in the Medical Malpractice Statute.

I applaud the Supreme Court’s opinion in this case and hope that it sends a chilling message to doctors, lawyers, and the judges who have for far too long permitted the use of these unconscionable “agreements” to keep injured patients and their families from holding them accountable for the harm they cause.

If you or a family member have been injured due to the carelessness of a doctor, hospital or other healthcare provider and have questions regarding your potential claim, please Email me, Spencer Aronfeld or call our South Florida medical malpractice lawyers for a free confidential consultation at 305-441-0440 or Toll Free at -1866-597-4529.