Arbitration & Mediation

2nd DCA instructs on proper method of doctor-patient arbitration

By Christopher B. Hopkins, Esq.

We get a number of questions from doctors and clinics as to whether they can insert arbitration or jury waiver clauses into their patient contracts. Generally speaking, the answer is yes and it can be done in a way to avoid a lot of the typical controversies. In this instance, admittedly, the eye doctor did everything that was appropriate yet the patient still sought to fight it. Nonetheless, now armed with this opinion, doctors and medical clinics should be emboldened in their decision that an arbitration agreement is efficient and enforceable.

The case is Jonathan M. Franz, M.D., P.A. d/b/a Florida Eye Healthcare v. Edward Clark Shedden (before a Second DCA panel of Stringer, Silberman, and Gallen). In this case, the patient came in for a pre-operative visit in 2003 and signed various documents before his surgery. One of the documents was the arbitration agreement which was a free-standing document which included in large, bold, capital letters at the top “PLEASE READ CAREFULLY PATIENT-DOCTOR ARBITRATION AGREEMENT.” The testimony revealed that this document was specifically brought to the patient’s attention; he was given the opportunity to read, he was told that he could ask questions, and he was told that he could take it home and review it with anyone including an attorney. The patient declined, didn’t read the agreement, didn’t ask questions, and signed it.

In 2004, the patient returned for yet another elective surgery and again went through the same procedure with the Arbitration Agreement. Again, he did not read it, did not ask questions, but signed it. In 2006, the patient filed a medical malpractice law suit based upon treatment he received after the 2004 surgery. He claimed, procedurally, that the arbitration clause was not explained to him and that he believed that it applied solely to the surgical procedures. Substantively, he claimed that it contradicted the arbitration provisions of Chapter 266 (F.S. 766.207). The trial court agreed with both.

The Second DCA concluded that the Agreement was a separate document which was clearly and conspicuously labeled and that the Defendant’s employees gave the patient every opportunity to read, consider, and consult before he signed the Agreement. For that reason, the patient failed to establish that he did not have a meaningful opportunity to review the Agreement and accept or reject it terms before signing it. Without question, the facts as recited by the Second DCA indicate that this was, procedurally, as close to a “perfect” set of circumstances surrounding the signing of an agreement.

Likewise, as to substantive unconscionability, the court found that the language of the Agreement had “strong similarities” with the provisions of Section 766.207. Under those circumstances, “the Agreement cannot be considered so outrageous as to shock the judicial conscience.” Incidentally, this is the first time that we have seen someone suggest that an Arbitration Agreement is not sufficiently similar to the wording of Chapter 766. Recall, there is both the Florida Administrative Code, as well as some notoriously confusing arbitration language in the Medical Malpractice Statute, Chapter 766. In trying to read these provisions harmoniously, it is questionable whether an Arbitration Agreement truly needs to track the wording of 766. Nonetheless, this appears to be a safe practice, at least in the Second DCA.

Notably, we return to the issue as to questions about appealing the arbitration award. As we typically find, the arbitration agreement in this case apparently included the phrase that it is “final and binding”. The patient claims that this was an improper revocation of his right to appeal under the Florida Administrative Code (which, within itself, is already remarkably limited). The Second DCA went on to hold that such an agreement does not purport to truly limit those rights since it goes on to say that the proceeding should be done “pursuant to the Florida Arbitration Code.” Moreover, there was severability clause in the Arbitration Agreement. For careful readers of this website, there have been prior cases indicating that “final and binding” language does not necessarily mean that the parties are giving up their limited rights to appeal an arbitration award.

Full post as published by Florida Arbitration Law on April 01, 2008 (boomark / email).