Can a Doctor Make You Sign Away Your Right to Sue for Malpractice?

If you are seriously injured due to medical malpractice, you have a protected constitutional right to pursue your claims before a jury. As an alternative, Florida law does provide for voluntary arbitration—that is, resolution of your claims before a group of private judges without a jury—under certain circumstances. If the medical provider is willing to admit liability, you can agree to arbitrate the issue of damages separately. But if you do not wish to pursue arbitration, you may still pursue a medical malpractice lawsuit in court.

However, medical providers often attempt to trick their patients into agreeing to “binding arbitration” that is substantially different that the system described above. Physicians may demand patients sign “financial agreements” that require submission of any malpractice claims to arbitration—even with respect to the question of liability. These private arbitration clauses can also limit a patient’s potential damages and due process rights beyond what Florida law provides.

Florida Courts Continue to Struggle With Private Arbitration Agreements

In 2013, the Florida Supreme Court struck down one such private arbitration clause as contrary to public policy. In that case, the patient was required to sign a financial agreement that said any malpractice claim would be submitted to arbitration as provided under Florida law. But in fact, the arbitration clause was much more restrictive. As the Supreme Court noted, the medical provider was not required to concede liability as a precondition of arbitration, and the patient’s potential non-economic damages were limited to half of what the law allowed.

Accordingly, the Supreme Court said that “any contract that seeks to enjoy the benefits of the arbitration provisions under the statutory scheme must necessarily adopt all of its provisions.” The whole point of the Florida law is to provide “incentives” for patients to submit to arbitration while still protecting their basic rights. The types of arbitration clauses illustrated in this case make a mockery of the process.

Despite the Supreme Court’s ruling, the lower Florida courts continue to struggle with the enforceability of private arbitration clauses. In 2014, the Second District Court of Appeal in Lakeland held that such clauses were permissible so long as they did not refer to the Florida law. Put another way, the Florida arbitration scheme should be seen as just one option for pursuing arbitration. As the Second District put it, “The supreme court held that any agreement that seeks to enjoy the benefits of the arbitration provision under the statutory scheme must necessarily adopt all of its provisions.” (Italics in original)

But more recently the Fifth District Court of Appeal in Daytona Beach adopted a less literal reading of the Supreme Court’s decision. That court said any arbitration agreement that failed to follow the standards set in Florida law were unenforceable regardless of whether the parties specifically invoked said law. The Fifth District noted its decision was in direct “conflict with the decision of the Second District Court of Appeal,” suggesting the Supreme Court may have to address this issue at some point.

Speak With a Florida Personal Injury Lawyer Today

While arbitration may be beneficial in some cases, patients should always exercise caution before signing away their right to a jury trial. An experienced Clearwater medical malpractice lawyer can advise you of your rights and how to best protect them. Contact the Law Office of Paul B. Genet, P.A. at 727-538-8865 today if you would like to speak with an attorney right away.

Contact Form
MileMark Media - Practice Growth Solutions

© 2015 - 2017 Law Office of Paul B. Genet, P.A. All rights reserved.
This law firm website is managed by MileMark Media.