Arbitration & Mediation

Third DCA Addresses Chapter 766 Medical Malpractice Act Arbitration Loophole

By Christopher B. Hopkins, Esq.

We've been of the opinion for some time that Florida's Medical Negligence Act (Chapter 766) has been in need of some fine-tuning beyond the 2003 amendments. One of the potholes in the med mal road has been that it appears there are two alternative options for Chapter 766 arbitration: arbitration with caps and just plain arbitration. As the Third DCA correctly pointed out in a subtle footnote in Leon Medical Centers, Inc., Dr. Ricardo F. Martinez et al. v. Estella Martell as PR of Estate of George Martell, it's probably time the Legislature took a red pen to the Act and clear that up. Meanwhile, the Third DCA did the best they could to simplify (?) the situation.

In this case, the prospective plaintiff and defendants apparently completed the pre-suit process and the defendant proposed to admit liability and arbitration damages under F.S. 766.106(3)(b)(3). That provisions allows a prospective defendant, at the end of the pre-suit period, to "[make] an offer to arbitrate in which liability is deemed admitted and arbitration will be held only on the issue of damages. This offer may be made contingent upon a limit of general damages."

That last sentence is the kicker -- particularly the word "may." It suggests that you can choose, or choose not to, limit damages. In this case, the defendant's lawyer wrote to plaintiff that "the offer to arbitrate was for voluntary arbitration as set forth under Chapter 766." In the statute, F.S. 766.207 provides the caps.

The Plaintiff claimed this was arbitration without caps. The Defendant claimed that "as set forth under Chapter 766" was sufficient wording to include the caps.

The panel (Cope, Wells and Fletcher) dodged the statutory interpretation issue and simply claimed that, when the defendant wrote "under Chapter 766," it was sufficient to trigger the caps under 766.207.

Arbitrator note: F.S. 766.207(6) sets forth that arbitrators of medical claims should be paid between $250 - 750 per hour...

Full post as published by Florida Arbitration Law on March 04, 2008 (boomark / email).