Binding Arbitration

Frequently Asked Questions About Binding Arbitration

What is the benefit to arbitrating medical malpractice claims for physicians and patients?

Medical malpractice lawsuits are often very lengthy and expensive for all parties.  The high cost of malpractice lawsuits contribute to the rising cost of healthcare.  As a result, many physicians have been forced to raise their fees, reduce their practices, or leave Florida altogether, threatening patients’ access to medical care.  Arbitration is a relatively informal process of resolving disputes that is an alternative to the traditional court system.  Through arbitration, patients and physicians both benefit because they are able to more promptly resolve malpractice claims and for less cost to each party.  It is also believed that arbitration panels will help to avoid unreasonable jury awards, thereby further lowering costs.  These cost savings would positively impact medical professional liability rates and the cost and availability of healthcare services in Florida.

How does the arbitration process work?

In agreeing to arbitration, the parties agree to give up their constitutional right to have any potential medical malpractice claim resolved in court.  Instead, all medical malpractice claims are resolved by a panel of three arbitrators.  The process starts with a notice from one party to the other demanding arbitration.  The patient and the physician would each name one person to serve as an arbitrator.  An arbitrator is like a judge, in that he or she listens to the evidence presented by both sides and decides whether malpractice occurred.  These two arbitrators would pick a third arbitrator.  This panel of three arbitrators would then set up rules about the witnesses and evidence each side could present, and they would set up a schedule for the arbitration.  If necessary, the arbitrators could issue subpoenas to compel witnesses to appear at the hearing or to obtain documents or other evidence.  At the arbitration hearing, each party will be represented by their own attorney.  Each party will have the opportunity to present evidence and witnesses, and cross-examine the other party’s witnesses.  All three arbitrators would listen to the evidence and participate in the decision.  They would apply the same law that a court would apply, but the procedural rules are more relaxed and the hearing is less formal than a trial.  Based on the evidence and the law, the arbitrators could award any amount or kind of damages that a court could award.

What does binding arbitration mean?

Binding arbitration means that the decision of the arbitration panel is final.  Neither party can go to court to appeal the arbitrators’ decision, except on very limited grounds.  That is why they call it “binding” arbitration – because both sides are bound by the arbitrators’ decision.

Will Florida’s pre-suit screening process for medical malpractice claims be preserved under Women’s Care’s Florida’s arbitration agreement?

Before the parties arbitrate a medical malpractice claim, the agreement requires the parties to first follow Florida Statutes, Chapter 766, with regard to the pre-suit screening of medical malpractice claims.  This screening process ensures that a medical malpractice claim is fully investigated so that the parties have an opportunity to resolve legitimate claims at an early stage, which saves the parties time and money.

What is the most significant difference between Women’s Care Florida’s arbitration agreement and the arbitration provisions that are available under Florida’s statutes that govern medical malpractice claims?

Florida law, Chapter 766, provides the opportunity through two separate statutes to arbitrate medical malpractice claims where a physician is willing to admit liability. If a medical malpractice claim is not resolved at the end of the pre-suit screening process by settlement or if a physician is unwilling to admit liability to trigger the arbitration statutes under Florida Statutes 766, the dispute will be resolved by the arbitration agreement.  Therefore, the most significant difference is that under Women’s Care Florida’s arbitration agreement, the parties agree to litigate the issue of liability.

What claims does the arbitration agreement cover?

The arbitration agreement applies to malpractice claims associated with both past and future care and treatment.  In addition, the patient agrees that any controversy including, without limitation, claims for medical malpractice, personal injury, loss of consortium, or wrongful death arising out of or in any way relating to the diagnosis, treatment, or care of the patient by the physician, including any partners, agents, or employees of the provider of medical services, shall be submitted to binding arbitration as well.

What claimant(s) does the arbitration agreement cover?

Under the agreement, all claims based upon the same occurrence, incident, or care will be arbitrated in one proceeding.  The agreement binds all parties whose claims may arise out of or relate to treatment or services provided by the physician, including the patient, the patient’s estate, any spouse or heirs of the patient, and any children of the patient, whether born or unborn, at the time of the occurrence giving rise to the claim.  In the case of any pregnant mother, the term “patient” means both the mother and the mother’s expected child or children.

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