Arbitration Category Archives — South Florida Injury Attorneys Blog Published by South Florida Injury Lawyers

January 18, 2017

Florida Supreme Court Finds Medical Malpractice Arbitration Agreement Unenforceable

In response to a perceived crisis in medical insurance costs, the Florida legislature passed the Medical Malpractice Act (“MMA”), which was designed in part to deal with perceived rising medical malpractice costs in the state. See Franks v. Bowers, 116 So. 3d 1240, 1247 (Fla. 2013). In a specific effort to curb these costs, the Act included a statutory scheme governing arbitration agreements covering potential medical malpractice claims. Although the law clearly evidences the legislature’s intent to allow medical providers to enter into arbitration agreements with patients, there continues to be ample litigation regarding how much the terms of such agreements may veer from the provisions under the MMA. See Fla. Stat. §§ 766.207, 766.212 (outlining the required contents of medical malpractice arbitration agreements). Indeed, in a recent decision, Hernandez v. Crespo, the Supreme Court of Florida ruled that a medical malpractice arbitration agreement executed by a woman who delivered a stillborn fetus after being turned away from a doctor’s appointment was void as a matter of public policy.

The key facts at issue in Crespo are as follows. The principal plaintiff in this action was 39 weeks into her pregnancy and experiencing contraction pains when she was turned away by her physician for showing up late to the appointment. The original appointment was scheduled for August 17, 2011, and she was rescheduled for an appointment on August 21, 2011. On August 20, 2011, the plaintiff delivered a stillborn fetus. A little more than a year later, on December 19, 2012, the principal plaintiff and her husband, the other plaintiff in this action, served notice on the doctor from whom she was turned away and Women’s Care Florida that they intended to initiate litigation regarding the treatment she received, which they alleged caused the stillborn birth. The plaintiffs ultimately filed suit on May 23, 2013, and about a week thereafter, the defendants moved to stay proceedings and compel arbitration pursuant to an arbitration agreement that had been executed between the parties. On August 29, 2013, the plaintiffs requested binding arbitration, pursuant to Fla. Stat. § 766.207, which the defendants rejected, arguing that they sought to enforce the signed agreement, which forestalled the need for § 766.207 arbitration. The trial court ultimately granted the motion compelling arbitration, but Florida’s Fifth District Court of Appeals reversed, finding that the arbitration agreement at issue violated public policy. The Fifth District did note, however, that its ruling was in direct conflict with a Second District decision on the issue.

July 20, 2016

Florida’s Second District Rules that Arbitration Agreement Signed by Deceased Resident’s Wife is Unenforceable

by Frankl Kominsky Injury Lawyers

Like other industries providing services to vulnerable populations, nursing homes are no strangers to lawsuits. However, simply because nursing homes and similar long-term care businesses often find themselves in courts does not mean they like to be there. Indeed, nursing homes routinely have their incoming residents sign arbitration agreements providing that potential claims against the nursing home be resolved through informal arbitration rather than formal litigation. Given that arbitration panels are often believed to be biased, the enforceability of such arbitration provisions is frequently at issue. For instance, in a recent decision, Sovereign Healthcare of Tampa, LLC v. Estate of Schmitt, Florida’s Second District Court of Appeals addressed whether a nursing home resident’s wife had the authority to sign an arbitration agreement on his behalf.

Sovereign Healthcare arose from incidents of alleged negligence at Bayshore Pointe Nursing & Rehabilitation Center in Tampa, Florida. The plaintiff in this case was the widow of a resident who spent two separate stints at Bayshore prior to his death. Before each of the deceased’s residencies at Bayshore, a “Resident Admission and Financial Agreement” was executed. The agreements included identical arbitration clauses that provided for the arbitration of disputes related to the deceased man’s residency at Bayshore. After the widow of the deceased man filed suit on behalf of his estate, Bayshore made a motion to compel arbitration, arguing that the arbitration provision in the first residence agreement required that the claims asserted be arbitrated. The trial court denied the motion, and Bayshore appealed the adverse ruling.

August 26, 2015

Florida’s Second District Court of Appeal Reverses and Compels Arbitration in Nursing Home Abuse Case

by Frankl Kominsky Injury Lawyers

In light of Florida’s large elderly population, it’s not surprising that the Florida legislature has specifically passed legislation providing specific rights to those who reside in nursing homes. See §§ 400.022-.023, Fla. Stat. (2010). However, among the many rights encompassed in these provisions is not one assuring that these rights must be adjudicated in a court. Indeed, these claims, like many others, can be subject to compelled arbitration when an unwitting party signs away his rights to formal adjudication. Given that arbitration can pose the risk of unfair or inadequate adjudication of rights, the enforceability of these provisions is often a topic of litigation. For instance, the Second District Court of Appeal recently issued its decision in Greenbrook NH, LLC v. Estate of Sayre, which addressed whether an arbitration agreement entered into by the daughter of a nursing home resident was enforceable.

Sayre arose from an alleged act of negligence at a nursing home facility in St. Petersburg, Florida. The plaintiff in this case is the daughter of a deceased nursing home resident who brought this action as the representative for the decedent’s estate. The decedent resided at the nursing home for most of 2011. Following the death, the plaintiff brought suit against the nursing home for both negligence and the violation of the decedent’s nursing home resident’s rights under §§ 400.022-.023 of the Florida Statutes. At the time the daughter placed her mother in the nursing home, she signed an arbitration agreement as her mother’s authorized legal representative. In light of this arbitration agreement, the nursing home moved to dismiss and compel arbitration. The trial court denied the motion, finding that the agreement was invalid and unenforceable because portions of the copy of the arbitration agreement proffered to the court were obscured. The nursing home then brought the current appeal, arguing that despite the photocopying error, the trial court’s factual finding was in error because the other terms of the agreement were sufficiently clear and definite to make the agreement enforceable.

April 22, 2015

Third District Court of Appeal Affirms in Florida Arbitration Clause Dispute

by Frankl Kominsky Injury Lawyers

Arbitration clauses are a common part of many types of contracts, from employment agreements to recreational waivers. Although arbitration is quite popular, at least among contract drafters, agreeing to arbitrate often means relinquishing many important procedural and substantive rights associated with formal legal proceedings. Since many are unaware of the implications of arbitration at the moment of contract formation, courts frequently are called upon to determine the enforceability of these clauses. Fortunately for many hapless prospective litigants, not all such clauses are valid. For instance, the Third District of Appeal affirmed a Miami trial court’s denial of arbitration in Club Mediterranee, SA v. Fitzpatrick.

The plaintiff in Fitzpatrick worked as a costume designer at a Club Med in the Bahamas. While sleeping in an employer-provided dormitory room on the resort, the plaintiff was allegedly attacked by an unknown assailant. Following the alleged attack, the plaintiff brought suit against Club Mediterranee (Bahamas), Ltd. and several parent and affiliate corporate entitles. The defendants made a motion to either compel arbitration or, alternatively, for dismissal on the ground of forum non conveniens. The trial court denied the motion in its entirety, and the defendants appealed the decision.

September 24, 2014

Fourth District Court of Appeal Declines to Enforce Arbitration Provision in Elder Abuse Case

by Frankl Kominsky Injury Lawyers

Florida has long served as a destination for America’s elderly population and, as a result, has also become home to a considerable number of retirement homes and assisted living facilities. Regrettably, despite the best efforts of the Florida’s Department of Elder Affairs, the care residents at these facilities receive remains an issue. Even when cases of elder abuse are properly identified, many litigants encounter a variety of problems when they bring legal action to redress their grievances. Among these issues is the pervasive use of arbitration clauses in retirement home and assisted living facility contracts. However, notwithstanding the ubiquity of arbitration provisions, the Fourth District Court of Appeal again took a firm stance against their enforceability in its recent decision in Lopez v. Andie’s, Inc..

Lopez arose from allegations involving resident care at Willow Manor Retirement Home, an assisted-care living facility in Dania Beach, Florida. Following an incident in 2011, which resulted in a severe fracture to a resident’s arm, the resident brought suit against the facility. However, shortly after the case was filed, the defendant moved to compel arbitration, arguing that the arbitration provision in the agreement executed between the resident and Willow Manor at the time of the resident’s admission required that any controversy or dispute between the parties be determined through a binding arbitration proceeding held in accordance with the American Health Lawyers Association (“AHLA”) alternative dispute resolution rules. After the trial court granted the defendant’s motion to compel arbitration, the plaintiff brought an appeal, arguing that the arbitration procedures were contrary to public policy and thus unenforceable.