Florida’s Financial Responsibility Requirements

Some states will not allow a doctor to legally practice medicine without carrying malpractice insurance. Florida is not one of those states. Instead, Florida law only requires physicians to “demonstrate financial responsibility” in the event of a successful malpractice claim.

What does “financial responsibility” mean? Generally, the doctor must obtain an irrevocable line of credit from a bank. The bank agrees to pay any successful malpractice claim presented up to a certain amount. This line of credit is “irrevocable” because once granted, the bank cannot unilaterally cancel it.

Florida requires a doctor maintain either malpractice insurance or an irrevocable line of credit in the following amounts:

• $100,000 per claim or $300,000 per incident for all physicians; or
• $250,000 per claim or $750,000 per incident for all surgeons who work in an “ambulatory surgical center” or any physician with hospital staff privileges.

When Insurance and Credit Are Not Enough

Keep in mind, the law does not require doctors to carry any more insurance or credit than the amounts stated above. And in many cases, these amounts may not be adequate to fully compensate a victim for their injuries, especially when you factor in the costs of bringing a successful malpractice claim in the first place. It often takes several years and thousands of dollars in legal fees just to get a malpractice case to court in Florida.

And if doctors do not carry sufficient insurance or credit to carry a malpractice verdict, victims may be left holding a worthless judgment. Many doctors simply file for federal bankruptcy protection to get out of paying damages. Other health care providers hide their assets. A 2004 Associated Press report offered the example of one West Palm Beach surgeon who bragged, “On paper, I have nothing,” having re-titled all of his assets in his wife’s name.

Has Your Doctor Given Proper Notice?

Before you seek treatment from a doctor or health care provider, you should always inquire about their insurance status. In fact, you should know whether or not your doctor is “going bare” the minute you step into his or her waiting room. Florida law requires any doctor who chooses to practice without malpractice insurance to post the following sign in their office reception area:

Under Florida law, physicians are generally required to carry medical malpractice insurance or otherwise demonstrate financial responsibility to cover potential claims for medical malpractice. However, certain part-time physicians who meet state requirements are exempt from the financial responsibility law. YOUR DOCTOR MEETS THESE REQUIREMENTS AND HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This notice is provided pursuant to Florida law.

If you have been the victim of a physician’s negligence, it is essential you seek immediate legal assistance. If you need to speak with an experienced Clearwater medical malpractice attorney, contact the Law Office of Paul B. Genet, P.A., at 727-510-8802.

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 727-510-8802 if you require immediate assistance.

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 727-510-8802 today if you would like to speak with an attorney right away.