Medical Malpractice Attorneys Knowledge Base

Important Articles on Medical Malpractice and other relevant legal issues written by ABPLA Board Certified Medical Malpractice Lawyers

Medical Malpractice Articles by Christian D. Searcy ABPLA Board Certified Medical Malpractice Lawyer

ARBITRATING MEDICAL MALPRACTICE CLAIMS

I.          ARBITRATION GENERALLY -

A.                Advantages:

1.         Arbitration is presumably a more cost efficient alternative to actual litigation.

2.                  Arbitration allows for a prompt resolution of the existing dispute.

3.                  Arbitration is extremely elastic in regard to setting times and dates for arbitrating – a flexibility not found in the existing judicial system.

4.                  Upon commencement of the arbitration proceedings, resolution can be reached rather quickly as compared to the more formalistic quagmire encountered at the judicial level.  This is accomplished by:

a.       Parties agreeing on the issues prior to discussing the dispute before the arbitrator;

b.      Arbitrator acts as judge, jury and often times, adversary; enabling he or she to avoid hurdles facing those in a traditional courtroom proceeding.

5.                  Parties are permitted to select one of the arbitrators, akin to choosing your own judge.

6.                  The composition of the arbitration panel usually consists of men and women who have some expertise in the particular issues before them, as contrasted with the often inexperienced judge and jury trying to grasp issues that can be perplexingly complicated and convoluted.

B.                 Disadvantages:

1.         Due to its informal nature, arbitration can be unprotective of claimants rights in the case before the panel.

a.         Decisions of the arbitration panel are reviewable only on narrow grounds, making them more difficult to appeal than like decisions of trial courts.

2.         Arbitrators decisions can be highly unpredictable since they are not limited by the various substantive rules of law as are the courts.

            a.         Example:  Stare decisis.

3.         Arbitrators, by their very nature, and the difficult situations in which they are often placed will decide cases in a less than satisfactory manner.

a.         They often find themselves pressured to either decide in favor of the parties whom they serve or to decide in light of the evidence before them.

b.         Result:  A so called “middle ground” decision where the arbitrator tiptoes into a position of neutrality.

4.         Increasingly, modern arbitration is no longer the inexpensive and informal alternative it once was as it becomes more of a mirror remedial system to the judicial system it was designed to improve upon.

II.        COURT ORDERED ARBITRATION UNDER FLORIDA STATUTE 768.575 (1986 SUPPLEMENT):

            A.        Initiating Arbitration.

1.         Claimant must allege death or injury incurred due to the negligence of a health care provider.

2.         Court may then require that claim be submitted to non-binding arbitration (upon motion by other party).

            B.        Selection of Arbitrators.  The Mechanics.

                        1.         Chief judge of Circuit Court prepares three lists.

a.         Claimant’s list shall consist of eligible attorneys representing the Plaintiff’s bar.

b.         Defendant’s list shall consist of members of defense bar and medical practitioners.

c.         Third list composed of trial lawyers not actively trying medical claims.

d.         Chief judge shall appoint an advisory committee which will approve those named on the prospective lists of both sides.

                        2.         Each side selects one arbitrator from their prospective lists.

3.         The two selected arbitrators shall then select the third arbitrator from the remaining list by a process of elimination.

            C.        Setting the Date for the Hearing.

1.         Upon selection of the arbitrators, Clerk attempts to schedule a mutually convenient date for both parties.

            a.         Hearing shall be within ten days of date of selection of panel.

            D.        The Hearing.

                        1.         Panel can consider all evidence and can decide liability and damages.

            a.         Punitives may not be granted.

2.         Hearing shall be informal.

            a.         Rules of evidence merely a guide, not binding.

3.         Panel members paid $100 per diem.

            a.         Each party assessed for such costs equally.

            E.         The Award.

                        1.         Decision rendered within thirty days after close of hearing.

                        2.         Decision is non-binding.

                        3.         If decision is accepted by the parties, it will be deemed a settlement.

4.         After the award is tendered, either party may demand trial de novo in the Circuit Court if that party finds the award unacceptable.

III.       ARBITRATING MEDICAL MALPRACTICE CLAIMS UNDER THE 1988 ADDITIONS TO FLORIDA STATUTES 768.78.

A.        Legislative Findings:  (Caveat:  Many of these findings are diametrically opposed to the actual data and testimony preserved before the house and senate committees.)

1.         Medical malpractice liability insurance premiums have skyrocketed.

                                    a.         This has spawned an increase in medical care costs.

                                    b.         As well as limiting the availability of malpractice insurance.

2.         Cause:  An increase in loss payments to claimants caused by huge increases in the amounts of paid claims.

3.         The costs incurred in defending these claims have risen in dramatic fashion as well.

a.         This has generated a need for controlling this unprecedented escalation for the sake of the public welfare.

4.         The high costs of these claims can be alleviated through the utilization of arbitration and pre-suit investigations.  These mechanisms will:

            a.         Reduce delay.

            b.         Reduce attorney’s fees.

            c.         Reduce the number of meritless claims.

5.         Awarding the claimant 100% of his or her economic losses represents over compensation because it fails to consider the tax free nature of such awards.

            B.        Legislative Intent.

                        1.         To provide a plan for prompt resolution of negligence claims.

a.         Plan consists of two components; pre-suit investigation and arbitration.

b.         As to the arbitration arm of this plan:

            i.          It shall be voluntary, but binding.

ii.         It shall provide incentives for both sides to submit their cases to binding arbitration – reducing fees, costs and delay.

iii.        It shall apply limits to the awarding of non-economic damages – increasing predictability of outcomes and facilitating early resolution of claims.

iv.        It provides a conditional limitation on non-economic damages where defendant concedes a willingness to pay them.

            C.        The Statute Itself.  (768.78, Section 54)

1.                  Procedure.

a.         Upon receipt of opponent’s request for arbitration, the remaining party has 30 days in which to accept the offer.

                                    b.         Acceptance subjects both sides to a binding decision of the panel.

                        2.         Consequences of submitting to arbitration under the statute.

a.         Arbitrating under this section prevents a claimant from using any other remedy against the participating defendants.

b.         Under this section, net economic damages are recoverable, but damages involving lost wages and lost earning capacity are limited to 80%.

c.         Non-economic damages are capped at $250,000 and are calculated on a percentage basis with respect to capacity to enjoy life.  Thus, 50% reduction in capacity to enjoy life equals an award of no more than $125,000.

d.         Damages for future economic losses will be distributed under a periodic payment plan.

e.         No punitives.

f.          Defendant shall pay claimant’s reasonable attorney’s fees and costs, but this will not exceed 15% of the award reduced to present value.

g.         Defendant pays panel’s fees (between $250 and $750 per day) and panel’s costs.

h.         Each defendant who submits to arbitration shall be jointly and severally liable.

                        3.         Failure to offer or accept voluntary binding arbitration.

                                    a.         If neither party agrees to arbitration, the claim proceeds to trial.

                                    b.         If Defendant refuses Plaintiff’s offer:

i.          Claim shall proceed to trial without any limitation on damages and Plaintiff can recover up to 25% of award for reasonable attorneys fees.                    

                                    c.         If claimant refuses Defendant’s offer:

i.          Non-economic damages at trial shall be capped at $350,000.  The legislature justifies this as appropriate in the light of Plaintiff’s refusal to arbitrate and as an effort to lower costs of patients who ultimately pay for these claims.

ii.         Economic damages shall be limited as if claim has gone to arbitration, (see section C2b above) at trial they are reduced to present value.

iii.        Damages for future economic losses treated as if they had gone to arbitration too.  See section C2d.

IV.       IN CONCLUSION.

            A.        Consequences of Agreeing to Arbitration Under Sections 54 and 56.

                        1.         For the Plaintiff.

a.         If claimant agrees he or she is limited to, at most, $250,000 for non-economic damages.

b.         Claimant and his counsel are also affected jointly for agreeing to arbitrate as the attorneys fees awarded are limited as well.  (15% of the award.)

                        2.         For the Defendant.

a.         Non-economic damages cannot exceed $250,000 as opposed to no limit if Defendant refuses to arbitrate.

b.         By agreeing to arbitrate, Defendant limits his exposure on attorney’s fees as well.

            B.        Consequences of Refusing to Arbitrate.

                        1.         For the Plaintiff.

a.         Refusing makes an extra $100,000 available for the calculation of claimant’s non-economic damages.

b.         But, there is no provision for attorney’s fees if arbitration is refused.

                        2.         For the Defendant.

                                    a.         No limitation on damages.

                                    b.         Must pay up to 25% of award for attorney’s fees.

            C.        Incentives.

                        1.         For the Plaintiff.

a.         Refuse to arbitrate and possibly gain an extra $100,000, but lose award for legal fees.

                        2.         For the Defendant.

a.         Incentive is clear – arbitrate and limit one’s exposure on non-economic damages and attorneys fees.

CDS/ram

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