August 4, 2013

162017_132140396847214_292624_nIn its decision filed on June 20, 2013, the Supreme Court of Florida (“Florida Supreme Court”) held that an agreement to arbitrate a medical malpractice claim against a Florida surgeon was unenforceable. The patient had signed a “Financial Agreement” prior to his surgery that provided, in part, “Patient agrees that in the event of any dispute with Doctor, for any reason whatsoever, including any negligence claim relating to the diagnosis, treatment, or care of the Patient, Patient’s non-economic damages (including, but not limited to, damages for pain and suffering) shall be limited to a maximum of $250,000 per incident, and shall be calculated on a percentage basis with respect to capacity to enjoy life, pursuant to the formula contained in Florida Statutes, Section 766.207.”

The Underlying Facts

On January 23, 2009, the defendant surgeon performed surgery on the patient without reported complications and discharged the patient to home. On January 25, 2009, the patient developed pain; he and his wife (the medical malpractice plaintiff) went to the emergency room, where a CT scan revealed a large retroperitoneal hematoma from the operative site due to the external iliac vein being lacerated during surgery. On February 3, 2009, the man died while still hospitalized.

The man’s wife subsequently filed her medical malpractice lawsuit against the surgeon and his medical practice, which moved to compel arbitration pursuant to the Financial Agreement that the man signed shortly before his surgery. The trial court ordered that the medical malpractice claim be submitted to arbitration. The wife appealed the order to compel arbitration, which was affirmed by the lower appellate court. The wife then appealed to the Florida Supreme Court.

The Florida Supreme Court stated, “we find that the damages clause of the arbitration provision of the Financial Agreement violates the public policy pronounced by the Legislature in the Medical Malpractice Act (MMA), and we further find that the offensive clause is not severable from the remainder of the arbitration provision.” The Florida Supreme Court noted that the patient would be entitled to receive a maximum of $1 million if the case proceeded to court without either party seeking arbitration, or if the defendants refused to proceed with arbitration under the conditions of section 766.207. However, under the Financial Agreement, the patient could only receive a maximum of $250,000 and the Financial Agreement further eliminated the inherent concession of liability provided by section 766.207.

The Florida Supreme Court determined that the incentive provided to claimants to encourage arbitration is a necessary provision of the MMA and therefore the Financial Agreement’s avoidance of the incentive contravenes the intent of the statute and, accordingly, the public policy of Florida. Because the Florida Legislature explicitly found that the MMA was necessary to lower the costs of medical care in Florida, any contract that seeks to enjoy the benefits of the arbitration provisions under the statutory scheme must necessarily adopt all of its provisions, which the Financial Agreement failed to do. The Florida Supreme Court concluded, “the Financial Agreement is void as to public policy.”

Source Donna Franks, etc., Petitioner vs. Gary John Bowers, M.D., et al., Respondents, Case No. SC11-1258.

If you or a family member may have suffered serious injuries or death as a result of medical malpractice in Florida, you should promptly seek the advice of a Florida medical malpractice attorney to assist you with your medical malpractice claim.

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