ABA Health eSource
October 2010 Volume 7 Number 2

I Need a Lawyer to See My Doctor: Pre-Treatment Mandatory Arbitration Agreements as a Condition Precedent to Receiving Medical Care in Florida

By Adam S. Levine, M.D., J.D., The Florida Legal Advocacy Group, P.A., Clearwater, Florida 1

AuthorForget simply depositing fifteen cents into Lucy’s 2 can: Charlie Brown really needs a lawyer before he can actually see his doctor. Before receiving new or ongoing medical care in Florida, Charlie Brown must now sign a pre-treatment mandatory arbitration agreement in addition to the already required HIPAA forms, insurance forms, assignment of benefits forms, and consents for treatment. Although contractual arbitration provisions are common outside medicine, Florida is one of the first states where contractual arbitration provisions were introduced as a condition precedent to receiving medical care. In an effort to treat a perceived medical malpractice liability crisis, 3 First Professional Insurance Company (FPIC) -- one of Florida’s largest medical malpractice liability insurers – in 2004 introduced pre-treatment mandatory arbitration agreements as a mechanism to limit medical malpractice liability. 4

Echoing the 2003 Florida Legislature’s findings that arbitration benefited both plaintiffs and defendants by reducing attorney’s fees, litigation costs, and delay, 5 in 2008 FPIC reported to its insureds that, “Binding arbitration affords potential benefits to both physicians and patients including: 1) lower legal costs for both parties; 2) lower indemnity payments through the use of an arbitration panel that, relative to a jury pool, will likely make a more well-reasoned and educated decision based upon the medical facts of the case; and 3) a more prompt resolution of claims.” 6

Over the past several years, these contractual arbitration agreements spread, and now many Florida physicians require that their patients consent to pre-treatment mandatory arbitration agreements before receiving new or ongoing medical care. Importantly, these contractual arbitration agreements significantly differ from the arbitration provisions permitted under Chapter 766 of the Florida Statutes where either party to medical malpractice litigation may voluntarily avail themselves of binding arbitration. 7

In Florida, valid contractual arbitration provisions require that the parties intend that arbitration controls the determination of future potential disputes. 8 Courts may not compel arbitration when both parties “[do] not intend and agree to arbitrate.” 9 In the absence of unconscionability, contractual arbitration agreements are valid despite their provision of more restricted remedies than those provided by statute. 10 Notably, unconscionability requires both procedural and substantive unconscionability. 11

“Procedural unconscionability relates to the manner in which a contract is made,” 12 and substantive unconscionability assessments require an evaluation of whether the terms of the agreement are “so outrageously unfair as to shock the judicial conscience.” 13 Procedural unconscionability is not likely to be found “When the arbitration agreement is a separate document that is clearly and conspicuously identified as an arbitration agreement and when the plaintiff has sufficient time to review the document and an opportunity to consult with others concerning the legal ramifications of the document.” 14

Substantive unconscionability will be equally unlikely when the contractual arbitration provisions are similar enough to their statutory counterpart such that the contractual provisions are not “so outrageous as to shock the judicial conscience.” 15 The court upheld the format and language of the FPIC recommended contractual arbitration agreement in 2008 specifically holding that there was neither procedural nor substantive unconscionability and that pre-treatment mandatory arbitration agreements violated neither public policy nor any statutory rights. 16

Interestingly, although courts generally uphold contractual arbitration agreements, historically only a small percentage of medical malpractice claims are settled by either statutory or contractual arbitration agreements. 17 However, over time as more physicians require mandatory pre-treatment arbitration agreements, the courts may be forced to reconsider unconscionability in terms of both access to healthcare and the parties involved. Access to healthcare may be significantly limited in certain geographic locations when the majority of providers require mandatory pre-treatment arbitration agreements. For example, approximately two-thirds of all potential private-practice, full-time obstetricians in Hillsborough County, Florida currently require pre-treatment mandatory arbitration agreements. 18 Electing not to sign a pre-treatment mandatory arbitration agreement will significantly decrease a pregnant woman’s ability to find an obstetrician in her geographic location.

Additionally, it remains unclear whether a pregnant woman may essentially limit an unborn child’s rights by signing a pre-treatment mandatory arbitration agreement. Although the Florida Supreme Court held that arbitration agreements, signed by a minor’s guardian, may bind minor children to pre-injury waivers requiring arbitration as a sole remedy for medical services contracts, 19 no court has applied this right to the parent of an unborn child. 20 Finally, although a minor may not generally execute a valid contract, a pregnant minor in Florida may consent to healthcare decisions for herself, her pregnancy, and her child. 21 But, may a pregnant minor sign a pre-treatment mandatory arbitration agreement for her unborn child?

Torts and footballs aside, Charlie Brown needs a lawyer before seeing Lucy in Florida. Because pre-treatment mandatory arbitration agreements will likely be held valid, and because pre-treatment mandatory arbitration agreements will likely limit his available remedies, Charlie should consult with his lawyer before consulting with Lucy and waiving his rights. Will these pre-treatment waivers in fact actually reduce legal expenses, decrease indemnity payments, and improve the rapidity and efficiency of medical claims resolution? The strip has yet to be drawn. In the interim, Charlie Brown still needs his lawyer to protect his rights if not his health.

1

Adam S. Levine founded the Florida Legal Advocacy Group after graduating from the part-time law program at Stetson University College of Law in December 2009 and becoming a member of the Florida Bar in April 2010. Before matriculating, and while attending Stetson, Dr. Levine practiced medicine in Florida for 12 years and was Board Certified in Obstetrics and Gynecology and sub-specialty certified in Reproductive Endocrinology and Infertility. Dr. Levine plans to focus on health law and focus both on patient and physician advocacy. Dr. Levine may be reached by email at aslevine@msn.com This article was based, in part, upon data from an independent research project supervised by Dean Darby Dickerson, Vice President, Dean and Professor of Law at Stetson University College of Law who provided seemingly endless patience, encouragement, and support.

2

With all apologies to Charles Schulz!

3 Robert E. Cline, Carl J. Pepine, Medical Malpractice Crisis: Florida’s Recent Experience Circulation. 2004: 109; 2936-2938.
4 FPIC Arbitration Program http://www.firstprofessionals.com/RiskManagement/Prevention/ArbitrationProgram/default.aspx (Last accessed October 3, 2010)
5 Florida Department of Financial Services, Review of Florida Committee Substitute Senate Bill 2-D: Calculation of Section 40 “Presumed Factor,” http://www.floir.com/pdf/OIR_Report_Final_110620031.pdf (last accessed October 21, 2009), Page 5.
6 Florida Court Upholds Med Mal Binding Arbitration Agreement News&Views FPIC Newsletter Vol. 20, No.2, Spring 2008 Page 1-2.
7 Fla. Stat. §§ 766.101 – 766.316 (2010).
8 Toca v. Oliveres 882 So2d 465 (Fla. 3d DCA 2004)
9 Id.
10

Bland v healthcare and Retirement Corp. Am., 927 So. 2d 252 ( Fla 2nd DCA 2006)

11 Id. at 256
12 Id.
13 Id. (quoting Gainesville healthcare Ctr., Inc. v. Weston 857 So. 2d 278, 285 ( Fla. 1st DCA 2003)
14 Jonathan M.Frantz, M.D., P.A. v. Shedden 974 So. 2d 1193, 1197 ( Fla. 2nd DCA 2008)
15 Id. at 1198
16 Id.
17 Jeffrey Klagholz and Albert L. Strunk. Overview of the 2009 ACOG Survey on Professional Liability,14 ACOG Clinical Review (newsletter of the Am. Coll. Obstetricians and Gynecologists) 1, 15 (November-December 2009) The 2009 American College of Obstetrics and Gynecology (ACOG) survey revealed that 37.4 percent of medical malpractice claims were dropped by the plaintiff without their receiving compensation; 31 percent of claims were settled prior to trial where the plaintiff received compensation; 12.8 percent of claims were settled through adjudication ; 12.1 percent of claims were dismissed by the court without plaintiff compensation; 3.5 percent of claims were settled without plaintiff compensation; and 3.1 percent of claims were settled by arbitration
18 Determined by telephone survey of all private obstetrical providers in Hillsborough County.
19 Global Travel Marketing, Inc. v. Shea, 908 So. 2d 392 ( Fla. 2005)
20 In re Guardianship of J.D.S., 864 So 2d 534 ( Fla. 5 th DCA 2004)
21 Fla. Stat. § 743.065 (2010)

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