House Bill 0419

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    Florida House of Representatives - 1999                 HB 419

        By Representatives Levine and Greenstein






  1                      A bill to be entitled

  2         An act relating to medical malpractice;

  3         amending s. 766.207, F.S.; revising language

  4         with respect to voluntary binding arbitration

  5         of medical malpractice claims; providing for

  6         the effect of an offer to submit to voluntary

  7         binding arbitration with respect to allegations

  8         contained in the claimant's notice of intent

  9         letter; revising language with respect to the

10         arbitration panel; revising language with

11         respect to qualifications of arbitrators;

12         revising rate of compensation for medical

13         negligence claims arbitrators; revising

14         language with respect to damages; deleting

15         language with respect to certain rules;

16         amending s. 766.209, F.S.; revising language

17         with respect to the effect of failure to offer

18         or accept voluntary binding arbitration;

19         increasing certain damage award limits;

20         providing an effective date.

21

22  Be It Enacted by the Legislature of the State of Florida:

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24         Section 1.  Section 766.207, Florida Statutes, is

25  amended to read:

26         766.207  Voluntary binding arbitration of medical

27  negligence claims.--

28         (1)  Voluntary binding arbitration pursuant to this

29  section and ss. 766.208-766.212 shall not apply to rights of

30  action involving the state or its agencies or subdivisions, or

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  1  the officers, employees, or agents thereof, pursuant to s.

  2  768.28.

  3         (2)  Upon the completion of presuit investigation with

  4  preliminary reasonable grounds for a medical negligence claim

  5  intact, the parties may elect to have damages determined by an

  6  arbitration panel. Defendants offering to submit to

  7  arbitration pursuant to this section and in conjunction with

  8  s. 766.106, shall be deemed to have admitted both liability

  9  and causation with respect to the allegations contained in the

10  claimant's notice of intent letter. Such election may be

11  initiated by either party by serving a request for voluntary

12  binding arbitration of damages within 90 days after receipt

13  service of the claimant's notice of intent to initiate

14  litigation upon the defendant. The evidentiary standards for

15  voluntary binding arbitration of medical negligence claims

16  shall be as provided in ss. 120.569(2)(e) and 120.57(1)(c).

17         (3)  Upon receipt of a party's request for such

18  arbitration, the opposing party may accept the offer of

19  voluntary binding arbitration within 30 days. However, in no

20  event shall the defendant be required to respond to the

21  request for arbitration sooner than 90 days after service of

22  the notice of intent to initiate litigation under s. 766.106.

23  Such acceptance within the time period provided by this

24  subsection shall be a binding commitment to comply with the

25  decision of the arbitration panel. The liability of any

26  insurer shall be subject to any applicable insurance policy

27  limits. A claimant's acceptance of an offer to arbitrate shall

28  not bar the claimant from pursuing a cause of action against

29  defendants who do not offer or agree to arbitration under this

30  section.

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  1         (4)  The arbitration panel shall be composed of three

  2  arbitrators, one selected by the claimant, one selected by the

  3  defendant, and one arbitrator selected jointly by the other

  4  two arbitrators who shall serve as the chief arbitrator.  In

  5  the event of multiple plaintiffs or multiple defendants, the

  6  arbitrator selected by the side with the multiple parties

  7  shall jointly select the arbitrator for their side.  If the

  8  multiple parties cannot reach agreement as to their

  9  arbitrator, a petition shall be filed with the chief judge of

10  the appropriate circuit court, who shall select the arbitrator

11  or arbitrators at issue an administrative law judge furnished

12  by the Division of Administrative Hearings who shall serve as

13  the chief arbitrator.  In the event of multiple plaintiffs or

14  multiple defendants, the arbitrator selected by the side with

15  multiple parties shall be the choice of those parties.  If the

16  multiple parties cannot reach agreement as to their

17  arbitrator, each of the multiple parties shall submit a

18  nominee, and the director of the Division of Administrative

19  Hearings shall appoint the arbitrator from among such

20  nominees.

21         (5)  The arbitrators shall be independent of all

22  parties, witnesses, insurance carriers, self-insurance trusts

23  or risk retention groups of a party, and legal counsel, and no

24  officer, director, affiliate, subsidiary, or employee of a

25  party, witness, or legal counsel may serve as an arbitrator in

26  the proceeding.

27         (6)  The rate of compensation for medical negligence

28  claims arbitrators other than the administrative law judge

29  shall be set by the chief judge of the appropriate circuit

30  court using by schedule providing for compensation of not less

31  than $250 per day nor more than $750 per day or as agreed by

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  1  the parties. In setting the schedule, the chief judge shall

  2  consider the prevailing hourly rate rates charged for the

  3  delivery of professional services in the community.

  4         (7)  Arbitration pursuant to this section shall

  5  preclude recourse to any other remedy by the claimant against

  6  any participating defendant, and shall be undertaken with the

  7  understanding that:

  8         (a)  Net economic damages shall be awardable,

  9  including, but not limited to, past and future medical

10  expenses and 80 percent of wage loss and loss of earning

11  capacity, offset by any collateral source payments paid.

12         (b)  Any offset of collateral source payments made as

13  of the date of the arbitration hearing shall be in accordance

14  with s. 768.76.

15         (c)  Each claimant shall be entitled to receive a

16  maximum of $350,000 in noneconomic damages per incident of

17  medical malpractice from each defendant participating in

18  arbitration.  The Legislature is cognizant of the increasing

19  costs of goods and services each year, and recognizes that

20  fixing a set amount of compensation actually has the effect of

21  a reduction in compensation each year. Accordingly, the

22  conditional limitation on damages in this section shall be

23  increased at the rate of 5 percent each year, pro rated from

24  the effective date of this paragraph, to the date on which

25  noneconomic damages subject to such limitation are awarded by

26  arbitration, final judgment, or settlement Noneconomic damages

27  shall be limited to a maximum of $250,000 per incident, and

28  shall be calculated on a percentage basis with respect to

29  capacity to enjoy life, so that a finding that the claimant's

30  injuries resulted in a 50-percent reduction in his or her

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  1  capacity to enjoy life would warrant an award of not more than

  2  $125,000 noneconomic damages.

  3         (d)(c)  Damages for future economic losses may shall be

  4  awarded to be paid by periodic payments pursuant to s.

  5  766.202(8) and shall be offset by future collateral source

  6  payments.

  7         (e)(d)  Punitive damages shall not be awarded.

  8         (f)(e)  The defendant shall be responsible for the

  9  payment of interest on all accrued damages with respect to

10  which interest would be awarded at trial.

11         (g)(f)  The defendant shall pay the claimant's

12  reasonable attorney's fees, and costs, and expenses as

13  determined by the arbitration panel, which shall be taxed as

14  costs but in no event more than 15 percent of the award,

15  reduced to present value.

16         (h)(g)  The defendant shall pay all the costs of the

17  arbitration proceeding and the fees of all the arbitrators

18  other than the administrative law judge.

19         (i)(h)  Each defendant who submits to arbitration under

20  this section shall be jointly and severally liable for all

21  damages assessed pursuant to this section.

22         (j)(i)  The defendant's obligation to pay the

23  claimant's damages shall be for the purpose of arbitration

24  under this section only.  A defendant's or claimant's offer to

25  arbitrate shall not be used in evidence or in argument during

26  any subsequent litigation of the claim following the rejection

27  thereof.

28         (k)(j)  The fact of making or accepting an offer to

29  arbitrate shall not be admissible as evidence of liability in

30  any collateral or subsequent proceeding on the claim.

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  1         (l)(k)  Any offer by a claimant to arbitrate must be

  2  made to each defendant against whom the claimant has made a

  3  claim.  Any offer by a defendant to arbitrate must be made to

  4  each claimant who has joined in the notice of intent to

  5  initiate litigation, as provided in s. 766.106.  A defendant

  6  who rejects a claimant's offer to arbitrate shall be subject

  7  to the provisions of s. 766.209(3). A claimant who rejects a

  8  defendant's offer to arbitrate shall be subject to the

  9  provisions of s. 766.209(4).

10         (m)(l)  The hearing shall be conducted by all of the

11  arbitrators, but a majority may determine any question of fact

12  and render a final decision.  The chief arbitrator shall

13  decide all evidentiary matters.

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15  The provisions of this subsection shall not preclude

16  settlement at any time by mutual agreement of the parties.

17         (8)  Any issue between the defendant and the

18  defendant's insurer or self-insurer as to who shall control

19  the defense of the claim and any responsibility for payment of

20  an arbitration award, shall be determined under existing

21  principles of law; provided that the insurer or self-insurer

22  shall not offer to arbitrate or accept a claimant's offer to

23  arbitrate without the written consent of the defendant.

24         (9)  The Division of Administrative Hearings is

25  authorized to promulgate rules to effect the orderly and

26  efficient processing of the arbitration procedures of ss.

27  766.201-766.212.

28         (10)  Rules promulgated by the Division of

29  Administrative Hearings pursuant to this section, s. 120.54,

30  or s. 120.65 may authorize any reasonable sanctions except

31  contempt for violation of the rules of the division or failure

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  1  to comply with a reasonable order issued by an administrative

  2  law judge, which is not under judicial review.

  3         Section 2.  Subsections (2), (3), and (4) of section

  4  766.209, Florida Statutes, are amended to read:

  5         766.209  Effects of failure to offer or accept

  6  voluntary binding arbitration.--

  7         (2)  If neither party requests or agrees to voluntary

  8  binding arbitration, the claim shall proceed to trial or to

  9  any available legal alternative such as offer of and demand

10  for judgment under s. 768.79 or offer of settlement under s.

11  45.061.

12         (3)  If the defendant refuses a claimant's offer of

13  voluntary binding arbitration:

14         (a)  The claim shall proceed to trial without

15  limitation on damages, and the claimant, upon proving medical

16  negligence, shall be entitled to recover prejudgment interest,

17  costs, and reasonable attorney's fees which shall be taxed as

18  costs up to 25 percent of the award reduced to present value.

19         (b)  The claimant's award at trial shall be reduced by

20  any damages recovered by the claimant from arbitrating

21  codefendants following arbitration.

22         (4)  If the claimant rejects a defendant's offer to

23  enter voluntary binding arbitration:

24         (a)  The damages awardable at trial shall be limited to

25  net economic damages, and, with regard to each defendant

26  offering voluntary binding arbitration, plus noneconomic

27  damages not to exceed $500,000 $350,000 per incident of

28  medical malpractice to each claimant.  The Legislature

29  expressly finds that such conditional limit on noneconomic

30  damages is warranted by the claimant's refusal to accept

31  arbitration, and represents an appropriate balance between the

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  1  interests of all patients who ultimately pay for medical

  2  negligence losses and the interests of those patients who are

  3  injured as a result of medical negligence. The Legislature is

  4  cognizant of the increasing costs of goods and services each

  5  year, and recognizes that fixing a set amount of compensation

  6  actually has the effect of a reduction in compensation each

  7  year. Accordingly, the conditional limitation on damages in

  8  this section shall be increased at the rate of 5 percent each

  9  year, pro rated from the effective date of this paragraph, to

10  the date at which noneconomic damages subject to such

11  limitation are awarded by arbitration, final judgment, or

12  settlement.

13         (b)  Net economic damages reduced to present value

14  shall be awardable, including, but not limited to, past and

15  future medical expenses and 80 percent of wage loss and loss

16  of earning capacity, offset only by any collateral source

17  payments paid for past economic damages.

18         (c)  Damages for future economic losses may shall be

19  awarded to be paid by periodic payments pursuant to s.

20  766.202(8), and shall be offset by future collateral source

21  payments.

22         Section 3.  This act shall take effect July 1, 1999,

23  and shall apply to all causes of action accruing on or after

24  said date.

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  2                          HOUSE SUMMARY

  3
      Revises language with respect to voluntary binding
  4    arbitration of medical negligence cases. Provides that
      defendants offering to submit to such arbitration shall
  5    be deemed to have admitted both liability and causation
      with respect to the allegations contained in the
  6    claimant's notice of intent letter. Revises language with
      respect to the arbitration panel. Provides that the rate
  7    of compensation for medical negligence claims arbitrators
      shall be set by the chief judge of the appropriate
  8    circuit court using the prevailing hourly rate charged
      for the delivery of professional services in the
  9    community. Revises language concerning maximum amounts of
      damages which may be awarded. Deletes provisions
10    authorizing the making of described rules. Revises
      language with respect to the effects of failure to offer
11    or accept voluntary binding arbitration. See bill for
      details.
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