Arbitration agreements, which require patients to give up their rights to a jury trial if their treatment goes awry, are gaining popularity among doctors in Florida. People who are in favor of the agreements argue that these legal contracts cut down on medical malpractice costs. However, the legality of the agreements is called into question, as many patients often don’t understand what they are signing or what rights they are giving up.
When patients go to their doctor’s office, they are often handed a stack of paperwork to fill out, which usually includes an arbitration agreement. If the patient signs the agreement, they have agreed to settle any medical malpractice issues with an arbitration panel, not in court. The medical provider must admit liability in arbitration, and a patient’s damages are capped at $250,000, which is half the amount that lawmakers imposed almost a decade ago. The Florida Supreme Court is trying to decide the legality of the agreements, since it has been long held in Florida that no party to a written agreement can defend against its enforcement on the sole ground that he signed it without reading it.
An attorney for the surgeons group, Kelly Mathis, argued that the patient has no right for the doctor to admit liability, and proving that a health care provider is liable should be part of receiving damages. Justice James Perry, however, believes that the agreement is not in line with public policy because it “cherry-picked provisions from the medical malpractice law to benefit the healthcare provider.”
Backers of the agreement argue that the main advantages of the arbitration agreements include an expedited case and a reduced cost of litigation. Insurance rates in Florida still remain some of the highest in the country, according to Jeff Scott, general counsel to the Florida Medical Association.
In 2008, Joseph Franks signed four pages that were termed a “financial agreement.” The packed also included an arbitration agreement on the second page, and when he later died after complications from a hernia surgery, his wife sued. Two lower courts ruled in favor of North Florida Surgeons, but now the case is before the Florida Supreme Court.
Arbitration agreements require that the defendant pay for attorney’s fees and the cost of arbitration, among other expenses. It is unclear when justices will make a ruling in the case, and Franks’ attorney argues that it’s tough to expect the average patient to understand a legal document before seeing a doctor. Justice Barbara Pariente explained her hesitation with the agreement because it lacks protection for the patients: “Basically, they are not getting anything.”