Medical negligence arbitration proceedings before Florida's Division of Administrative Hearings.

Author:Watkins, W. David
Position:Administrative Law

Medical negligence arbitration proceedings, as an alternative to traditional civil tort actions, offer potential advantages to both plaintiffs (claimants) and defendants. Specifically, uncertainty and risk will be substantially reduced in many instances, making this alternative attractive to both parties. This article discusses the history of the medical negligence arbitration option, as well as the mandatory presuit process and the arbitration hearing itself, which is conducted under the auspices of Florida's Division of Administrative Hearings.


During the 1980s, medical malpractice insurance premiums skyrocketed as the rapidly increasing cost of medical care, coupled with large jury verdicts, strained many insurers' ability to remain solvent. (1) With the passage of S.B. 85-175, lawmakers sought to create a mechanism to address the problem. (2) In an attempt to remedy the situation, the legislature passed a law requiring a "presuit investigation" process and arbitration for all medical malpractice claims. (3) As the legislature stated, "Medical malpractice liability insurance premiums have increased dramatically in recent years, resulting in increased medical care costs for most patients and functional unavailability of malpractice insurance for some physicians." (4) While discussed in greater detail below, the presuit investigation process essentially requires nascent litigants to engage in an informal discovery phase before filing a lawsuit.

The 1988 revision of the presuit statute remained in place without any substantial changes until Gov. Bush, in 2003, signed an executive order creating a task force to examine Florida's availability and affordability of medical malpractice insurance. (5) The governor's Select Task Force on Healthcare Professional Liability Insurance was charged with making recommendations for "protecting Floridians' access to high quality and affordable healthcare." (6) The legislative plan seemed obvious: Create a way to save money by avoiding suit before judicial litigation and eliminate meritless claims. As stated in Jackson v. Morillo, 976 So. 2d 1125, 1128 (Fla. 5th DCA 2007): "The purpose of the medical malpractice presuit screening statute is to prevent the filing of medical malpractice claims that are not legitimate." With this backdrop, the task force set forth recommendations that are the crux of this article -the voluntary binding arbitration process. The major recommendations encouraged mediation and requested a redefinition of damages in presuit arbitration to conform to damages under the Florida Wrongful Death Act. (7)

Understanding the Presuit Process

In order to understand the Division of Administrative Hearings' (DOAH) role in medical malpractice arbitration proceedings, it is important to have an understanding of the presuit process. The presuit process set forth in F.S. Ch. 766 frequently precipitates the decision to engage in arbitration, or even settlement, the intent being that a diligent investigation by both parties will lead to a realistic evaluation of the claim. (8)

It is important to keep in mind that not every tort claim arising in the field of medicine is susceptible to the presuit process. The question of whether a particular claim falls under the presuit process depends solely on whether it is a claim for medical malpractice. (9) A claim for medical malpractice means "a claim arising out of the rendering of, or the failure to render, medical care or services." (10) Thus, the main inquiry is whether the action resulted from any medical, dental, or surgical diagnosis, treatment, or care. (11) Some actions that may not require the presuit process include loss of consortium claims, nursing home claims, psychologist claims, pharmacy claims, and health maintenance organization claims. (12)

In its entirety, the presuit process is to last 90 days, but can be extended by agreement of the parties. (13) During this process, each side is required to make good-faith efforts to conduct informal discovery and reasonable investigations. (14) Types of discovery that are typically utilized during this period are interrogatories, requests for production, unsworn statements, interviews with the claimant's healthcare providers, and physical and mental examinations of claim ants. (15)

Once the presuit investigation by the claimant is complete, the process requires that prior to filing suit, the claimant must first mail a notice of intent to each prospective defendant. (16) The notice of intent is required to contain a verified medical opinion from a medical expert attesting that the care rendered by the defendant fell below the appropriate standard of care and that this negligence caused harm to the patient. (17) The statutory language is specific and explains exactly who can act as a medical expert in issuing the opinion. (18) While prospective defendants are not required to obtain a medical expert, they are required to investigate the claim in good faith and are well advised, if they are going to reject the claim, to obtain external review by a medical expert.

Options Following the Presuit Process

At the conclusion of the presuit process, a prospective defendant must choose between one of four possibilities authorized by Ch. 766. The prospective defendant may reject the claim, make a settlement offer, offer to admit liability and proceed to arbitration on the issue of damages, or do nothing (which will be deemed a rejection of the claim). (19) If the claim is rejected, the prospective defendant must submit a written opinion from a medical expert with any response rejecting the claim. (20) However, if the prospective defendant chooses to admit liability and proceed to arbitration, DOAH's jurisdiction is invoked, and an administrative law judge will be appointed to serve as the chief arbitrator. (21)

The Arbitration Hearing Process

As explained by the court in Estrada v. Mercy Hospital, Inc., 121 So. 3d 51, 53-54...

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