Should I sign my doctor’s medical arbitration agreement?
I’m Brett Panter from the personal injury and medical malpractice law firm of Panter Panter, and Sampedro. Today I’m here to talk to you about a little known problem that can arise out of your medical care and a waiver of your rights. It’s known as an arbitration agreement for claims arising out of or related to medical care. I was recently asked to sign one of these agreements at a doctor’s office. The most important aspect of this agreement is what you are waiving. In this particular agreement in bold letters it says, “By signing this agreement, you are waiving your right to a jury trial and you agreeing to arbitrate all claims arising out of or related to your medical care.” What does that mean? If you voluntarily sign this agreement you are automatically going to arbitration and arbitrations are conducted different ways. In this particular agreement the doctor’s contract of arbitration says that you will pick an arbitrator, the doctor will pick an arbitrator and those two will pick a third arbitrator. Your matter, no matter how important it is to you about the medical malpractice that may have been committed, will be decided by three arbitrators. You waive your right to a jury trial. You’re waiving your constitutional rights. Is this agreement enforceable? In most cases, yes it is enforceable so be very careful with what you’re signing. These arbitration procedures were designed to save money. The truth of the matter is that you’re following the rules of civil procedure meaning that each side is retraining experts, each side is following all the rules of civil procedures so that process sis just as cumbersome and long because you’re still following civil procedure but probably ends up costing you more money because now you’re paying three arbitrators to decide your case. Often times these are business people. These are not members of your community or your peers. I urge you to not sign one of these agreements. Consider going to a different doctor. It’s very difficult to get out of one of these agreements once you sign them. You need to get a valid court order and there has to be a valid reason to get yourself out of these agreements. Once they are signed you are waiving your right to a jury trial. The decisions are often very final and very difficult to appeal. The standard to appeal is very, very high. Once you’re in this arbitration world there’s no getting out. I suggest that when you see agreements like this, think about them and consider if you really want to go to a doctor that asks you to waive your constitutional rights and consider consulting with a lawyer before signing it.
What are the medical malpractice statute of limitations in Florida?
How long will it take for my Florida medical malpractice case to go to trial?
Typically a trial in a medical malpractice case may require a couple of years for discovery. Discovery includes depositions, fact finding, gathering experts, and getting ready for trial. Along the way many cases do settle, but typically you can count on about two years before a case is ready for trial.
If my doctor was negligent, does that mean I will win my medical malpractice case?
The fact that your doctor was negligent in and of itself does not mean you’re going to win your medical malpractice case. This is because you must prove two elements through your lawyers, the experts and the evidence. You must prove that not only was the doctor negligent, but that negligence caused and contributed to the injury and harm that you are now experiencing.
If my doctor was negligent, does that mean I will win my medical malpractice case?
If you win or settle your medical malpractice case in Florida you’re entitled to recover for you pain and suffering otherwise known as the non-economic damages. You’re also entitled to recover for economic damages, which include but are not limited to, your past medical expenses, your past lost wages, your future medical expenses, and your future loss of income.
What is a deposition?
A deposition is testimony under oath. In a deposition, there’s a court reporter that is typing notes, there is a lawyer asking questions, and there’s a lawyer from the other party present. Typically every side is represented. It can be adversarial or fact finding. Since it is under oath, everything you say at deposition can and may be used at trial.
What is a wrongful death medical malpractice claim?
A wrongful death medical malpractice claim is when a doctor or a healthcare provider does something or fails to do something, which was negligent and that negligence caused and contributed to the death.
Who can be sued in a Florida medical malpractice case?
In a medical malpractice case, any healthcare provider can be sued. The healthcare provider is defined under Florida statues, but generally, a healthcare provider is a doctor, the nurse, the therapist that works in the hospital, and the hospital itself if they employ these people.
Who is liable for damages in my Florida medical malpractice case?
In a medical malpractice case a hospital may be liable for damages, a doctor, or any treating physician, nurse, technicians, etc. All healthcare providers as defined by the medical malpractice statutes in Florida are liable for negligence.
Will I have to go to court for my Florida medical malpractice case?
You may have to go to court for your medical malpractice case in Florida. It depends on how compelling your case is. The best of the best cases typically do settle. If you’re right and negligence was committed and the lawyers and the experts can prove that the negligence caused your injury, a lot of those cases do settle. It’s the tightly contested cases that end up in court. Those are tough battles and you need to make sure that you get a lawyer who is able to go all the way for you and fight that battle.
What's the first step of a medical malpractice case?
Medical malpractice or medical negligence law differs very much from every other area of law. There’s something called a pre-suit investigation stage. In every one of these cases, we have to conduct a pre-suit investigation, which takes at least 90 days. During that period of time we’re required to get expert verified opinions meaning that if you were injured by a pulmonologist, for example, we would have to go get a pulmonologist or a specialists to sign an affidavit saying that they believe there was negligence and that the negligence contributed and caused your injury. This is very expensive and time consuming, but very important work to make sure that you have a valid, verifiable case. This is required under the law. Unlike an automobile case where if you come in to our office we can simply file suit, you cannot do that in medical negligence cases. The Florida statutes require that we comply with all pre-suit regulations. Your attorney can hire the right type of experts to validly and truthfully review your case to see if you actually have a case for medical negligence or medical malpractice.
Medical Malpractice Arbitration in Florida
Medical negligence cases are very complex cases with many pitfalls for the practitioner period. Arbitration is one of the areas that we worry about. There is something built into the statues that is referred to as voluntary binding arbitration. It’s generally a tool for the defense because once the defense makes a request that you arbitrate your case, if you accept it, your non-economic damages are limited to $250,000. What they mean by non-economic damages are your pain and suffering, your loss of enjoyment of life, and all of those things that are very hard to value. If you choose not to accept the arbitration request by the defense and you proceed to a jury trial, you’re limited to non-economic damages of $350,000. Unfortunately, this statute has been held constitutional by the courts in the state of Florida for many, many years. It’s a very severe tool that the defense has. Be aware of the statute and the dangers is poses for all of us.
What are the costs associated with a medical malpractice case?
Medical Malpractice cases are often very expensive litigations. The most expensive component of the case is experts; you have to pay to maintain not only your own experts, but also the deposition of the experts of the defense. Depositions, videographers, travel, medical records, exhibits, animations, are all costs of medical malpractice litigation. These are separate from the fees. Often times in a medical malpractice case the cost can exceed six figures. One of our former cases required us to spend $250,000, though the outcome of the case was positive. It is important to be aware that medical malpractice cases are one of the most expensive types of litigation.
What is voluntary binding arbitration in a medical malpractice case?
A voluntary binding arbitration is a tactic that is usually used by the defense, not generally the plantiffs. There are severe limitations in voluntary binding arbitrations. For one, there’s no jury trial and two, the decision is made my three arbitrators. One is picked by the plantiff, one is picked by the defendant, and one is a division of the administrative hearing officer. The issue is if you accept it your non-economic damages, such as your pain and suffering, loss of life, are limited. If you reject it and go to trial, your damages are still limited to $350,000.It is a severe tool that the defense has and those who are hurt the most are those with minor economic damages such as the death of a child of stay at home mother. It is an injustic built into the system that one must be aware of and we as plantiff lawyers have techinques to avoid this.
How to protect your financial health after a settlement ?
History has shown that many clients of catastrophic injuries, who come into large sums of money, lose it within a couple of years. We try to avoid this by purchasing an annuity for our clients with a life insurance company. What an annuity is, is we give the lump sum of money to the life insurance company and they provide pay outs for the rest of the client’s life. They’re secure and safe and the benefits are many. They provide years of lifetime funds with little risk, growth as the payments are tax free, the assets are protected from creditors, and provide a reasonable rate of return as well as pays for medical expenses. It is our highest recommendation to our clients.
What you need to know about Medical Malpractice and Bad Faith actions?
The general law is that with respect to insurance companies they have a reasonable duty to settle claims within your policy limits. They are required to do that immediately, from the day they reasonably knew the insured would be exposed to an excess judgement. If they do not do that the insurance company could be held liable for an excess judgement (moneys that are recovered that are greater than the policy limits). In the medical malpractice field the insurance companies have carved out an exception for themselves known as a safe harbor provision. This allows them 210 days to wait and not settle the case for the insured wthin the policy limits. The issue with that is that within that time frame expenses go up, clients die, and things happen that are not for the benefit of the claimant or the injured person. This provision is also referred to as Bad Faith Action. The insurance company can’t be held in bad faith for 210 days and only with regard to a medical malpractice litigation. It is a difficult obstacle and a deterrent for cases to settle early. As your lawyers we are aware of this circumstance and implement to help deal with this provision which is heavily anti-consumer.
What does it mean when doctors "go bare" in Florida?
Believe it or not, under Florida statute 45.8.320, doctors are allowed to go bare. Going bare means they aren’t carrying medical malpractice insurance. What that means to you as a patient, is you can be injured or a family member killed by a negligetnt doctor and you’re left with no medical compensation for damages. Things like medical bills, lost wages, or even catastrophic personal injuries can be left without compensation from your doctor. Doctors need to do one thing to comply with this, which is post a sign in their office. Look for these signs, that should state that “under Florida Law doctors are generally required to carry medical malpractice insurance or otherwise demonstrate financial responsibilty to cover potential claims.” In bold, on the same notice, it should say “your doctor meets these requirements and has chosen not to carry medical malpractice insurance.” At this point the choice is yours if you want to stay with your doctor or switch doctors. However,in Florida you will find plenty of these signs as the state statute protects doctors in cases of Medical Malpractice.
What you need to know about Medical Malpractice caps in Florida?
Caps on damages related to medical malpractice cases were introduced in 2003 by Florida legislature and were considered arbitrary. They limited non-econommic damages to $500,000 per claimant and practitioner. In 2005 the McCall vs United States of America case began. This involved Michelle McCall who had pre-natal care at the airforce clinic, she had high blood pressure that required her labor to be induced, but remained at a family practice department instead of being transferred to the OBGYN department where she could receive an emergency c-section. The outcome was a vaginal birth that resulted in a healthy son, but caused significant blood loss and death to the mother. The court found that the non-economic damages in this catastrophic case merrited a judgement of $2 million, but felt they had to reduce that judgement due to the Florida caps. The legal question ultimately ended up in the Forida Supreme court, and the question for the court was does the medical malpractice statute of 2003 violate the constitution on equal protection basis, access to courts, right to trial by jury and sparation of powers. The Supreme Court found that medical malpractice statute did indeed violate the equal protection clause of the Florida constitution. The court found that it arbitrarily diminished the compensation for legally recognizable and cognizable claims.
How to protect your family with a Life Care Plan after a Catastrophic injury in Florida?
We retain professional rehabilitation counselors. These professionals meet you and your family members and the injured person, whether they be adults or babies.These experts meet with and interview the injured persons or their caretakers (nurses, doctors, etc.). Extensive reseaerch is done to establish all the needs of the victim which is put into what is called a life care plan. As an example I will share with you the general contents of one of our firm’s recent life care plans. Since the case was resolved with confidentiality provision I will omit the names. The first category was medical needs for life: pediatric nephrology, now and until the age of 18 with cost, adult nephrology age 19-life with cost, organ transplants three times with associated cost, nutrition, dematological care, pediatrician, internist, gastroanterologist, cardeologist, oncologist labs, pre transplant expenses, all listed labs, post transplant, all surgery and post surgical follow up, psychological evalutation, behavioural therapy, occupational therapy, dialysis and associated medicines, supplies, blood pressure meds, face mask to avoid infection and more. These items are referred to as economic damages. It is our job as lawyers for catastrophically injured clients to prove these damages, because once your case is settled or resolved in court we can’t go back years later and ask for help. This is why we need and use the experts that have the knowledge to prove all your damages.
Who can recover compensation for the wrongful death of a loved one in Florida?
To understand the exception we must first discuss the general damages allowed under the wrongful death Florida statute. Survivors may recover the value of lost support and services. In determining these damages, joint life expectancies of the survivor and the decedent may be considered. Minor children of the decedent under the age of 25, if there is no surviving spouse, may recover for lost parentalship, guidance, and mental pain and suffering. Each parent of the deceased minor child may recover for mental pain and suffering if there are no other survivors. Each parent of an adult child may also recover for mental pain and suffering if there are no survivors. Medical and funeral expenses are also recoverable. Loss of earnings, less lost supports of survivors, loss of perspective net accumulations of an estate, and evidence of remarriage is considered and admissible also. Damages in section 3 shall not be recoverable by an adult children, and damages in section 4 shall not be recoverable by parents of an adult child due to medical negligence. What does this mean? If your mom or dad died due to medical negligence, and they weren’t married, or their spouse died, you as an adult child now have no claim in regard to pain and suffering regardless of how close you were to your parent. If you’re the parent of an adult child, meaning over age 25, who suffered a death due to medical malpractice, you can’t bring a claim for your mental pain and suffering. If the case has minimal economic damages, the doctor and hospital escape accountability again. Here’s what you can do: be informed, speak to elected officials and encourage them to change this arbitrary law.
What do you need in order to present a claim for medical malpractice in Florida?
Our office handles with a lot of phone calls dealing with medical malpractice cases. The Florida legislature has passed several laws that are pretty detailed that deal with medical malpractice cases. One of the things that needs to be done as a condition precedent before one can file a lawsuit for medical malpractice, is that you need to send a notice of intent to the prospective defendant. The prospective defendant is any health care provider that you believe neglected to do what any reasonable health care provider would have done under like circumstances. Under that pretense, you need to include an affadavit from another health care provider in a like field as the one you’re accusing of medical malpractice. Our office would need to speak to a health care professional in the same given field whether its a nurse, medical doctor, or doctor of osteopathic medicine or even within specialist medical fields. The other medical professional needs to indicate that the professional you are accusing of malpractice acted below the standard of care (legal term for medical negligence). As a consequence of acting below the standard of care the patient obtained an injury. A poor result is not considered to be medical malpractice as medicine is not a perfect science. The circumstance must be that the health care professional deviated from a standard which caused issue to the patient in order to be brought as a case of malpractice on the part of the doctor.