Pre-Suit Failure to Arbitrate

(1)  A proceeding for voluntary binding arbitration is an alternative to jury trial and shall not supersede the right of any party to a jury trial.

(2)  If neither party requests or agrees to voluntary binding arbitration, the claim shall proceed to trial or to any available legal alternative such as offer of and demand for judgment under s. 768.79 or offer of settlement under s. 45.061.

(3)  If the defendant refuses a claimant’s offer of voluntary binding arbitration:

(a)  The claim shall proceed to trial, and the claimant, upon proving medical negligence, shall be entitled to recover damages subject to the limitations in s. 766.118, prejudgment interest, and reasonable attorney’s fees up to 25 percent of the award reduced to present value.

(b)  The claimant’s award at trial shall be reduced by any damages recovered by the claimant from arbitrating codefendants following arbitration.

(4)  If the claimant rejects a defendant’s offer to enter voluntary binding arbitration:

(a)  The damages awardable at trial shall be limited to net economic damages, plus noneconomic damages not to exceed $350,000 per incident. The Legislature expressly finds that such conditional limit on noneconomic damages is warranted by the claimant’s refusal to accept arbitration, and represents an appropriate balance between the interests of all patients who ultimately pay for medical negligence losses and the interests of those patients who are injured as a result of medical negligence.

(b)  Net economic damages reduced to present value shall be awardable, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity, offset by any collateral source payments.

(c)  Damages for future economic losses shall be awarded to be paid by periodic payments pursuant to s. 766.202(9), and shall be offset by future collateral source payments.

(5)  Jury trial shall proceed in accordance with existing principles of law.

History.–s. 56, ch. 88-1; s. 32, ch. 88-277; s. 63, ch. 2003-416; s. 156, ch. 2004-5.

DISCLAIMER – Some of these Florida malpractice laws are exactly like they were first written years ago, but others have been amended several times over the years.  They can be amended again at any time.  For some of these laws you apply the version that existed at the time the malpractice occurred, but for others you apply the version of the law that exists at the time you file your case, or at the time your case gets to trial.  It can be tricky knowing which ones to use. We are showing you these Florida laws to help educate you about medical malpractice issues, but you should always consult an experienced Florida medical malpractice attorney before relying on these provisions.