How Doctors & Hospitals Use Arbitration Agreements to Avoid Medical Malpractice Lawsuits

When you seek medical care from a physician or hospital, you may be asked to sign an “alternative dispute resolution” agreement. These agreements require the patient to waive their right to file a medical malpractice lawsuit in the event of the health care provider’s negligence and instead submit any claim to private arbitration. While arbitration may be appropriate in some situations, oftentimes it is a stacked deck against the patient. Arbitrators are private lawyers who frequently do business with medical malpractice insurers, and consequently they have a strong economic incentive to rule against patients.

Florida Courts Void Arbitration Agreements That Violate “Public Policy”

But just because you feel compelled to sign an arbitration agreement, that does not mean it will be enforced by the Florida courts. Florida law does provide for arbitration of malpractice claims under certain conditions. These conditions include the physician or health care provider admitting liability in exchange for the patient agreeing to arbitration on the issue of damages. In a 2013 decision, the Florida Supreme Court held that a private arbitration agreement that required the patient to accept limits on their rights without such an admission of liability by the physician violated the “public policy” of the State of Florida and therefore invalid.

More recently, a state appeals court in Miami voided a similar arbitration agreement on public policy grounds. In this case, a woman admitted to a hospital for post-surgical care was asked to sign an alternative dispute resolution agreement at the time of her admission. The patient waived her right to sue in the Florida courts, yet the agreement still required her to comply with the state’s “presuit investigation and presuit notification” requirements before initiating any private arbitration.

The woman later alleged that she suffered additional injuries as a result of the hospital’s negligence. She subsequently filed a medical malpractice lawsuit against the hospital and several related parties. The hospital moved to enforce the arbitration agreement. A trial court agreed and issued an order compelling arbitration.

But the Florida Fifth District Court of Appeals reversed. In a July 15 opinion, the appeals court said the Florida Supreme Court’s earlier ruling “prohibits the enforcement of an arbitration provision that incorporates some, but not all, of the [Medical Malpractice Act’s] arbitration provisions.” In this case, the arbitration agreement incorporated the Act’s presuit investigation requirements, but not the rest of the law’s requirements. This was unacceptable as a matter of public policy, the Fifth District held, and therefore the arbitration agreement could not be enforced against the patient.

Need Advice From a Florida Medical Malpractice Attorney?

If you have been injured due to medical malpractice, the negligent health care provider may try to enforce an arbitration agreement that takes away your rights under Florida law. This is why you need to work with an experienced Clearwater medical malpractice lawyer who understands the law and how these types of arbitration agreements work. Contact the Law Office of Paul B. Genet, P.A., today at (727) 538-8865 if you require immediate assistance.

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