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Should Florida patients be asked to submit medical malpractice claims to arbitration?
Rich Bard's picture
Rich Bard
Under legislation being considered in the Florida Legislature, patients could be asked by their doctor to sign a form waiving their right to a jury trial and agreeing instead to submit any medical malpractice claims to arbitration. Such an agreement may contain a limitation on damages. The Florida Medical Association is a key supporter of the bill, which also includes other medical liability provisions. The Florida Justice Association is a major opponent.
Robert Patton Jr., M.D. and J.D.
A physician, an attorney, a Florida Supreme Court-certified circuit civil mediator and a qualified arbitrator

Medical malpractice litigation is costly, inefficient and extremely time consuming.  Cases may linger for years before finally resolved.  Moreover, in spite of the empty rhetoric about the system providing justice, it is the injured patient that ends up paying.  A Harvard Public Health study found that 54 cents of every dollar awarded injured patients actually went for attorney’s fees, costs and other administrative expenditures. 

Florida voters overwhelmingly approved Amendment 3 in 2004, which limited attorneys’ contingency fees allowing injured parties to keep more of the money awarded them due to the negligence of healthcare providers.  Trial attorneys quickly crafted a waiver requiring injured patients to surrender their constitutional right to fair compensation, assuring attorneys and the legal system continued to receive the majority of monies actually awarded injured patients.  Make no mistake, medical malpractice litigation in its current form represents little more than a redistribution of physicians’ wealth under the guise of “justice.” 

Arbitration is widely used within the business world to quickly and efficiently resolve conflict.  It typically involves a panel of arbitrators who have knowledge of the issue in conflict. Thus, they are more capable of coming to a just decision that removes the bias of juries who are swayed more by a Southern drawl, unkempt suit or tie or who harbor undisclosed bias toward a party.  Additionally, the process allows injured patients to keep more of the monies awarded them rather than having a majority of that money lost to an inefficient and unjust system.

Physicians have long suffered under a system that assigns “negligence” only on the basis of “more likely than not.”  A “clear and convincing” standard would reduce frivolous claims where the claim is related to damages allegedly due to a failure to order supplemental tests.  There should be convincing evidence that the test would have made a difference in the outcome. After all, attorneys have set the bar for legal malpractice extraordinarily high, demanding not only a show of negligence but that a jury would have found in favor of the injured party were it not for the negligence.  Once again, trial lawyers are demanding to have it both ways, claiming patients will suffer when trial lawyers are actually looking out for their wallet at the expense of injured patients.

The current legislation will actually allow patients to keep more of the monies they are awarded and reduce frivolous claims, which should be the goal of civil justice. 

Debra Henley
Executive director of the Florida Justice Association in Tallahassee

The Florida Legislature is at it again, and this time it is a full-blown assault on the rights of patients, most disproportionately women.

First, if you are a victim of medical malpractice, this bill would allow healthcare providers, insurance companies and their lawyers to speak to your treating physicians without your consent and outside your presence.  In other words, opposing attorneys could interview your OB/GYN, your psychiatrist, or anyone – just to gather more information against you in a lawsuit.

A second provision would require cases involving the failure to administer a supplemental diagnostic test to be proved at a clear and convincing burden of proof. A common form of diagnostic testing is the mammogram used to detect early stages of breast cancer. This harmful legislation would remove the incentive of doctors to administer this life-saving test and would endanger the lives of countless women.

But the most egregious provision allows doctors to REQUIRE patients to sign arbitration agreements prior to receiving care. Patients already face an abundance of paperwork when seeing a physician, and these arbitration agreements would be included in hopes most patients sign without reading.

A hypothetical debated by a Senate committee involved a doctor requiring a patient to waive their right to trial, accept an arbitrator of the doctor’s choosing and agree to limits on damages at $10,000 for actual damages, i.e., costs of healthcare, lost wages, etc., and $10,000 on noneconomic damages, i.e., pain and suffering.  In such a case where the injured patient is the family’s breadwinner and becomes permanently disabled, she would only be entitled to $20,000 to manage the rest of her life.

Limiting lawsuits doesn’t magically make the doctor’s harm go away; it simply denies patients from receiving what they are legally entitled. When arbitration or other limits make it impossible to recover, rather than the highly profitable medical malpractice insurance industry paying their bill, we the taxpayers pay them through higher Medicaid and Medicare budgets and other forms of state assistance.

Fortunately, language making emergency room medical providers agents of the state for purposes of malpractice was deleted. This provision would have capped damages that injured patients could recover at $200,000 per provider and $300,000 per incident, with the excess amount to be paid by taxpayers. But this change doesn’t cure a fatally flawed bill.

This legislation in its current form is dangerous for Florida’s patients. The Florida Legislature must not allow reckless and negligent medical providers to get away with adding insult to the injuries they cause.

Rich Bard's picture
Rich Bard
Associate Editor

Efforts were unsuccessful in securing a response from the Florida Medical Association on its support for the arbitration provision being considered by the Florida Legislature. That provision permits doctors to ask their patients to agree to arbitration on any current or future medical malpractice claim. It also may limit damages.

However, the Florida Medical Association’s president, Miguel A. Machado, M.D., wrote an open letter to members describing “three major medical liability reforms that the FMA has long advocated.” These provisions are included in the proposed legislation.

He described those “liability reforms” as follows: (1) “A provision allowing a prospective defendant or his or her legal representative to interview the claimant’s treating health care providers without the presence of the claimant’s legal representative”; (2) “A provision that would increase the burden of proof in medical liability cases involving diagnostic testing to a ‘clear and convincing’ standard,” and (3) “A provision that allows physicians and patients to enter into an arbitration agreement that includes a limitation on damages.”

Jeff Scott, general counsel of the FMA, told The Miami Herald that “these provisions are needed, they’re warranted and they’re fair.”

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