Claimants May Use “Pre-Suit Voluntary Binding Arbitration” To Their Advantage in Florida Medical Malpractice Cases
Is Binding Arbitration Worth it in Florida Med Mal Claims?
Medical malpractice cases are notorious for their complexity and costliness. In an effort to minimize the risks associated with bringing a medical malpractice claim, the Florida Legislature allows either party, the claimant or potential defendant(s), to propose “voluntary binding arbitration” during the pre-litigation stage.
In prior cases, the Florida medical malpractice attorneys at Senior Justice Law Firm have effectively used this lesser-known arbitration tool to successfully maximize medical malpractice claims for their clients.
Pre-Suit Arbitration of Medical Malpractice Cases Has Advantages for the Plaintiff
The Defendant Admits They were Negligent.
Pre-suit voluntary binding arbitration offers key advantages for claimants. In short, voluntary binding arbitration helps streamline the litigation process to move towards a quicker resolution while limiting litigation costs associated with a traditional, multiple-year medical malpractice claim.
Most significantly, if accepted by the Defendant, the Defendant admits liability and the case proceeds on the Plaintiff’s damages only. Furthermore, once the arbitration panel issues an award, the defendant’s rights to appeal are limited. The defendant must also satisfy the arbitration award within 20 days. If the defendant fails to pay within 20 days, the award accrues 18 percent interest per year until the award is paid in full. Also, if the claimant prevails, the defendant is required to pay arbitrators’ fees (except the administrative law judge), arbitration costs, and reasonable attorney’s fees plus interest on accrued damages awarded by the arbitration panel.
Medical Malpractice Arbitration in Florida: How It Works
The arbitration panel consists of three arbitrators. Each party selects an arbitrator; however, the third arbitrator is an administrative judge appointed by the Division of Administrative Hearings to serve as the chief arbitrator. If there are multiple parties on one side, they must agree to an arbitrator and any disputes are resolved by the Division of Administrative Hearings. Guidelines for the arbitrators’ daily rate and compensation is outlined as well.
When considering voluntary binding arbitration, it is critical that your attorney understands the notice and timing requirements of Chapter 766, Florida Statutes. First, either party may propose voluntary binding arbitration within the 90-day statutory pre-suit period. Next, the opposing party has 30 days to accept the arbitration offer. Notably, an opposing party is not required to respond to an arbitration offer until 90 days after the notice of intent to initiate litigation was served.
Accepting Binding Arbitration
If accepted, the opposing party admits liability and both parties enter into a “binding commitment” to have the damages-only portion determined by an arbitration panel.
Here is the downside: a claimant’s potential damages are limited through pre-suit voluntary binding arbitration. Notably, non-economic, pain and suffering damages are capped at $250,000 per incident. Also, it is rare that the claimant will receive anywhere near this $250,000 cap. This capped amount is reduced on a percentage basis with regard to the claimant’s capacity to enjoy life. For example, the arbitration panel finds that the alleged injury reduced the claimant’s capacity to enjoy life by 50 percent, the maximum noneconomic damages award ‘per incident’ would be reduced to $125,000. In addition, punitive damages are not recoverable under pre-suit voluntary binding arbitration.
Rejecting Binding Arbitration
If the opposing party rejects an offer of voluntary binding arbitration, the claim proceeds to trial. If the claimant prevails at trial, the opposing party must pay prejudgment interest and attorney’s fees.
So is Binding Arbitration Right for my Florida Medical Malpractice Case?
Binding arbitration is used sparingly, but may make sense in the right case. If your Florida medical malpractice case has contested liability, large economic damages and small non-economic pain and suffering damages, it may make sense to propose binding arbitration. We have successfully used binding arbitration to our advantage in cases involving hospital bedsore cases and surgical error lawsuits.
Overall, pre-suit voluntary binding arbitration can be an effective tool to maximize the value of a potential medical malpractice claim in Florida as well as limiting traditional litigation risks and costs. Contact the experienced attorneys at Senior Justice Law Firm today for a free medical malpractice consultation.
