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.
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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
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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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