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ARBITRATION AGREEMENTS AND ATTEMPTS TO CIRCUMVENT FLORIDA LAW

Ever since the revisions to Florida’s Medical Malpractice Act (MMA), companies have pushed the envelope on their arbitration agreements. In a recent case the Florida Supreme Court addressed another example.

In Franks v. Bowers, So.3d 38 FLW S416 (Fla. 6-20-2013), a surgical services agreement was found to be against public policy because it forced a patient to forego their rights to pursue a claim in court and also limited the amount of recoverable damages. In the Franks case, the arbitration provision in question limited the amount of recoverable noneconomic damages and also skirted Florida’s statutory requirement that liability be conceded in exchange for the limitation of the defendant’s liability.

The Supreme Court held “the incentive provided to claimants to encourage arbitration is a necessary provision of MMA. We therefore find that the arbitration agreement’s avoidance of the incentive contravenes the intent of the statute and, accordingly, the public policy of this state. Because the Legislature explicitly found that the MMA was necessary to lower the costs of medical care in this State, we find that any contract that seeks to enjoy the benefits of the arbitration provisions under the statutory scheme must necessarily adopt all of its provisions.”

While it can be debated whether the MMA was necessary to lower the costs of medical care in Florida, we can be assured that patients will continue to face arbitration agreements that attempt to reduce the already limited opportunities patients have.

If you or a loved one has been a victim of medical malpractice we invite you to call Robert Sparks Attorneys for a free consultation.

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