When victims who have sustained personal injuries think about difficulties that they may encounter in their case, they may think about stubborn defendants, or whether a jury will be convinced that they have suffered as much as they have. Most will not give much thought to arbitration problems.
But arbitration clauses, which are largely anti-consumer and anti-victim, can significantly impact a victim’s ability to realize the full value of their claim. There are few ways around these clauses, but a recent Florida Supreme Court case at least provides another avenue that people who are facing arbitration can use to preserve their rights.
What is Arbitration
Arbitration is a method of resolving a dispute informally, outside of a courtroom. The case is heard and decided by an arbitrator, and not a judge or jury. The rules are more relaxed and less formal. On the surface, arbitration sounds like a good idea.
But arbitration has significant anti-consumer problems. The first is that the consumer is stripped of his or her right to have the case heard by a jury of his or her peers. Instead, the arbitrator will hear and decide the claims. This is done on purpose. Arbitration is big business’ way of trying to avoid the perceived “runaway juries” that are thought to award excessive damages simply out of emotion. It is how a business tries to get rid of the perceived bias that it feels a jury has in favor of an individual person and against large companies or doctors.
The arbitrator is also not a sitting judge, not elected by the people, and in fact, may have ties to business or industry. In some cases, the arbitration company may make thousands of dollars off of the law firm for a defendant that may arbitrate many times a year, and thus, an inherent conflict of interest may exist.
The informality of arbitration also can mean reduced discovery, which means that a victim has a reduced ability to obtain documents, statements, or depositions that are needed to prove a case. Since the victim is the one who needs to prove his or her case, the informality ends up hurting the victim more than the defendant.
Arbitration decisions are largely final. There is limited ability for a victim who does not obtain a favorable arbitration decision to go to court and challenge that decision. In some cases, even the right to take an arbitrator’s decision to an appellate court, may be limited or waived by the arbitration agreement.
New Case Voids Arbitration Clause
Florida courts have largely upheld the enforceability of arbitration clauses, which now show up in credit card agreements, cell phone agreements, nursing home documents, cruise tickets, and doctors’ offices. These clauses are usually not negotiable, and are included in the fine print of whatever document a consumer is being asked to sign.
A recent case has tested the enforceability of an arbitration clause in a medical malpractice setting. The case involved a woman who, incredibly, was having contractions but was turned away from her doctor’s office because she was a few minutes late to her appointment. Days before the rescheduled appointment, her baby was stillborn.
When the woman sued for malpractice, the doctor’s office cited the arbitration clause she had signed to try to compel the case to be heard by an arbitrator.
Florida’s medical malpractice statutory scheme does have a mandatory arbitration provision, but unlike normal arbitration, it is not binding. A party can still file a lawsuit and have the case heard by a jury, if the arbitration does not come out to their satisfaction. This from than the arbitration in the contract the victim signed, which made arbitration mandatory. When the victim tried to utilize Florida’s statutory arbitration, the doctor’s office argued that their contractual arbitration should instead be utilized.
The court found that the changes to the statutory arbitration that were changed in the doctor’s contractual arbitration, were changed to benefit the doctor’s office. The contract altered numerous protections given to consumers in the statutory malpractice arbitration statutes. For example, the contract provided for the parties to share arbitration costs, when the statute makes defendant pay those costs. The contract does not provide for liability for payment of interest on damages awarded, when the statute does. The contract provided for no appeal process from arbitration, the way the statute does.
The court found that requiring a consumer to contractually agree to these changes altered the protections that the Florida Legislature found to be important when they enacted the statute in the first place. The court found that while parties could contract away the required pre-suit provisions in Florida’s medical malpractice procedures, they could not alter them contractually to benefit one side over the other. Thus, the contract was unenforceable as against public policy.
Applicability of Case May Be Limited
Any time a consumer beats an arbitration clause, it is good news. But this case may have limited application, given that the contract sought to alter an already existing statutory arbitration scheme. It is highly likely that the contract would have been enforceable had there been no underlying statutory arbitration requirement.
Still, the case upholds the longstanding principle that arbitration agreements that alter a victim’s statutory rights, or which contravene legislative enactment, can be held unenforceable. This happens often, such as when an arbitration provision allows for a prevailing party to recover attorney’s fees, but when a statute only provides for one party to recover them. Or, where a contract waives a consumer’s right to challenge the arbitration agreement itself before a judge, a right that is statutorily granted.
If you or a loved one have been injured as a result of medical malpractice make sure your attorneys are prepared to defend against everything the liable parties may throw at you. Contact the attorneys at Brill & Rinaldi for a free consultation to discuss your medical malpractice case.