Forced Arbitration in Medical Malpractice Cases Could Take Away Your Right to a Jury

If you are injured as a result of medical malpractice, you probably have the expectation that you’ll get your day in court, the chance to tell your story to a jury of your peers, and the opportunity to confront those who have wronged you.

More and more, however, doctors are trying to use forced, compelled arbitration to deny you that right. It’s a practice that is very harmful to Florida patients and consumers, and unfortunately, the law is very unclear whether these arbitration agreements are permissible or not.

What is Arbitration?

Arbitration is a process where 1-3 neutral arbitrators will hear your case, and decide whether you are entitled to recovery for your injuries. These arbitrators are not judges. They may be attorneys, retired judges, or in some cases, have no relation to the legal system. Some people are “professional arbitrators.” Unlike judges, they are unelected, and take no judicial oath. And, of course, there are not your peers, as are jurors. Yet the arbitrators will hear and decide your case.

An arbitration is an informal process. There is limited ability to present evidence to challenge the other side’s evidence. It is a less formal procedure than trial, and the ability to get documents and evidence from the other side before hearing is largely reduced from what you would be entitled to get in a normal case in the judicial system.

The Use of Arbitration by Doctors

Many companies have long had arbitration clauses in contracts and agreements, requiring parties to arbitrate disputes instead of filing a lawsuit. But the practice of doctors requiring arbitration when you have a medical malpractice claim is relatively new.

Florida law has a complex statutory scheme on how medical malpractice claims are handled. The question in cases which challenge the validity of arbitration agreements is whether the statutory scheme “trumps” arbitration clauses in physician agreements.

Florida’s laws say that a dispute can be resolved through trial, or “voluntary” arbitration. Some cases have read that to prohibit a patient from agreeing in a contract to forced arbitration.  If the law says that arbitration can only be voluntary at the time the case is filed, a contract requiring it violates the law and is against public policy.

But other cases have found no reason why contractual arbitration clauses would be invalid. They argue the contracts are entered into with consent, and there is nothing in the statutes that can be read to specifically forbid arbitration.

It’s likely the Florida Supreme Court will have to resolve the dispute. Hopefully it will find these clauses unenforceable. Many patients are unaware of what arbitration is, or how it affects them, and the doctor’s office is hardly the place where a consumer can take the time and make an informed decision on arbitration.

Arbitration takes away our basic constitutional right to trial by a jury. By using arbitration, the medical community is only seeking to avoid the sympathies of juries, even though such sympathies are often well placed, and well deserved. If the Supreme Court of Florida approves of these clauses, it is likely their use will become universal, essentially depriving all medical malpractice victims from truly having a day in court.

The law in medical malpractice can be complex and unsettled. Make sure your attorneys understand the current state of medical malpractice laws. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury or malpractice case.


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