Florida Supreme Court to decide whether patients should sign legal rights away

Oct 11, 2012

The following article was published in The Florida Times-Union on October 11, 2012:

Florida Supreme Court to Decide Whether Patients Should Sign Legal Rights Away

By Matt Dixon


TALLAHASSEE – Most people have been there. You go to the doctor’s office, and are promptly greeted with a stack of paperwork to fill out.

In many cases, that stack will include what’s called an arbitration agreement. It’s a contract that limits the right to a jury trial and limits damages if issues of potential medical malpractice arise.

The agreements have been both political and legal footballs in Florida.

Opponents say patients often do not understand what they are signing, or what rights they are giving up. Backers argue the agreements are legal contracts needed to cut down on medical malpractice costs.

Jacksonville resident Joseph Franks, 67, was handed four pages termed a “financial agreement” when he went to North Florida Surgeons in 2008. He signed the packet, which included an arbitration agreement on Page 2.

He later died after complications from hernia surgery. His wife sued, and after two lower courts ruled in favor of North Florida Surgeons the case is now before the Florida Supreme Court.

Underlying the specifics of the case is the legality of the agreements. Many health care providers already use them, but Florida law is murky on the issue.

Once an arbitration agreement is signed, whether patients know it or not, they have agreed to settle any medical malpractice issues with an arbitration panel, not in court. Under state law, when a medical provider agrees to arbitration he or she must admit liability, which can be one of the most expensive things to prove during a jury trial.

In return for being spared that expense, a patient’s potential quality-of-life-related damages are capped at $250,000. Under the North Florida Surgeon’s agreement, the $250,000 cap is in place, but during arbitration a patient must still prove a doctor was liable.

“If you are not going to admit liability, that’s going to eat up the $250,000 … even if you prevail,” said Justice James Perry during oral arguments last week.

Kelly Mathis, an attorney for the surgeons group, said proving that a health care provider is liable should be a part of receiving damages.

“The patient has no right for the doctor to admit liability,” he told the court.

He said the case is about the enforcement of a contract between two parties. The court can overturn that contract if it deems it’s against Florida’s “public policy,” which is set by the Legislature.

“Very clearly in [the malpractice law] the Legislature said we want and need [arbitration] to apply to medical malpractice cases,” he said.

Perry disagreed the agreement is in line with public policy because, he said, it “cherry-picked” provisions from the medical malpractice law to benefit the health care provider.

“How is it that this is not against public policy to eviscerate everything that the Legislature set out as public policy?” he asked.

Along with an admission of liability, state medical malpractice law has provisions that require arbitration to move quickly, and requires the defendant to pay attorney’s fees and the cost of arbitration, among other things.

Justice Barbara Pariente seemed skeptical of the arbitration agreement in question because it lacked those protections.

“Basically, they [the patients] are not getting anything,” she said.

Kelly disagreed because arbitration itself, he argued, is a benefit offered as part of the agreements.

“Arbitration is a much faster and much cheaper process for parties to go for,” he said.

Last year lawmakers tried to slip language into a much larger bill that would have codified arbitration agreements in state law. It was a compromise aimed at getting the Florida Medical Association to agree to concessions as part of a much larger health care bill.

FMA has long butted heads with the Florida Justice Association, which represents state trial lawyers, over the issue. Both powerful special interests have filed briefs in the case, underscoring not only its medical but political significance.

Jacksonville attorney Tom Edwards, who represents Franks’ estate, argued it’s tough to expect the average patient to understand a legal document before seeing a doctor.

“There is no way a layperson could ever understand that there is this complex scheme,” he told justices.

It is unclear when justices will make a ruling in the case.