What to Expect During Arbitration in a Florida Medical Malpractice Case

One of the initial stages of litigation in a Florida medical malpractice case is the pre-suit investigation and response provided by the prospective defendant after receiving notice that you intend to file a lawsuit to recover damages. The statute allows the health care provider 90 days to look into your allegations and either:

1. Reject your claim;
2. Offer settlement; or
3. Offer to resolve the dispute through arbitration.

There are multiple benefits and downfalls for you as the potential plaintiff regarding option #3, so your Florida medical malpractice lawyer will explain the specifics – and may advise you to move forward with voluntary arbitration. As such, you might find it useful to understand what to expect during the proceedings.

How Florida Med Mal Arbitration Works

If the potential defendant offers arbitration after conducting the pre-suit investigation and you accept, you’ll begin preparations. You should note the following about the proceeding:

• There will be three arbitrators on the panel. Each party will select one, and the last is an administrative judge appointed by law to serve as the chief arbitrator.
• When the defendant offers to arbitrate, he or she ADMITS liability. In other words, you don’t have to prove fault or negligence. The purpose of arbitration is solely to determine damages.
• Because the only disputed issue is your damages as a victim, the evidence and arguments center on your losses. Your attorney will present information regarding your medical costs for treatment, lost wages, pain and suffering, diminished quality of life, and other losses.

Note that you can reject the offer for voluntary arbitration, at which point your case proceeds to litigation and trial. In addition, the prospective plaintiff can also propose to resolve your case through arbitration.

Pros and Cons of Pre-Suit Arbitration of Medical Malpractice Cases

Every claim is different, so your lawyer will provide specific information and consult with you on whether arbitration is the right fit. However, you might want to review some of the general pros and cons:

• Arbitration is often preferred over the time and expense involved with traditional litigation. A med mal lawsuit could take several months, and most even go on for years because of the complexity of the subject matter.
• The only topic during arbitration is damages, since the potential defendant accepts responsibility for making a medical error. Some of the most hotly disputed, complicated proceedings in a lawsuit involve whether the health care provider was negligent AND whether that negligence was a direct cause of harm. You can avoid these issues by electing arbitration.
• The downside of arbitration is that your potential damages may be limited, either through the statutory cap of $250,000 on non-economic damages and other limitations on recoverable damages. Alternatively, if you reject arbitration, your non-economic damages at trial will be capped at $350,000.
  

Four Things Patients Should Know

1. Either Side Can Request Arbitration
   

Both the patient and the health care provider can ask the court to send the case to arbitration, so long as the pre-lawsuit investigation process is complete. Parties have 90 days to make the election, starting from the date that the doctor receives the patient’s notice of intent to sue. 

2. A Panel Presides Over the Arbitration Session
   

Instead of a single judge presiding over the proceedings, there are three arbitrators on the panel that will decide your case. Each party chooses a member, and the last is an administrative law judge who is appointed by the court to act as chief arbitrator. Together, the members of the arbitration panel will hear both sides and issue a ruling – which is binding on the parties, so you cannot go back to court if dissatisfied. 

3. The Only Issue at Stake is Damages
   

When either party opts to have the med mal case resolved through arbitration, the ONLY issue for the arbitration panel is damages. In other words, when a physician requests arbitration, he or she is admitting liability. You do not need to prove negligence or the existence of a medical error, which is an advantage since liability can be the most complicated, hotly contested issue in a med mal case. 

4. Your Non-Economic Damages are Capped Under Florida Arbitration Rules
   

Under Florida’s medical malpractice regulations, non-economic damages are capped in voluntary binding arbitration. It is one of the core legal protections that doctors, hospitals, and other health care providers receive when agreeing to use the binding arbitration process. A Florida arbitration panel can award no more than $250,000 in compensation for non-economic damages per incident. Non-economic damages are intangible losses, they include things like pain and suffering and loss of love, consortium, and companionship.

Economic losses are not subject to such a hard statutory cap. In other words, you can pursue compensation for the full value of your economic damages, which may include emergency room care, other medical costs, rehabilitative treatment, lost wages, diminished earning capacity, and certain wrongful death damages.

Our Florida Medical Malpractice Attorneys Can Provide Additional Details

From this overview, you can see that pre-suit voluntary binding arbitration can be an effective strategy to maximize your compensation, resolve your claim quickly, and limit the risks involved with traditional litigation. However, this decision is a very complicated decision, and the law can be tricky – making it all the more important for you to have an experienced medical malpractice lawyer representing you and your family.  For more information about the process and the benefits for your unique situation, please contact Freidin Brown, P.A. to speak with a Miami medical malpractice lawyer. We can schedule a free consultation at our offices to review your circumstances.

Resource:

The 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B)

Calculating Pain and Suffering in a Florida Med Mal Case