Florida Arbitration Program
The Doctors Company offers an arbitration program for its Florida members. The program was developed to assist physicians who are dealing with rising court costs and jury verdicts.
The Doctors Company
PO Box 4220
East Lansing, MI 48826
Attn: Beth Kosakowski
Fax: (904) 358-6424
For more information, please contact Beth Kosakowski at (800) 741-3742, extension 3280.
Frequently Asked Questions
- How do physicians and patients benefit from arbitrating medical malpractice claims?
- Medical malpractice lawsuits are often very lengthy and expensive for all parties. The high cost of malpractice lawsuits contributes to the rising cost of healthcare. As a result, many physicians have been forced to raise their fees, reduce their practices, or leave Florida altogether, threatening patients’ access to medical care. Arbitration is a relatively informal process of resolving disputes that is an alternative to the traditional court system. Patients and physicians both benefit from arbitration because they are able to more promptly resolve malpractice claims at a lower cost to each party. Arbitration panels may also help to avoid unreasonable jury awards, thereby further lowering costs. These cost savings may have a positive effect on medical professional liability rates and the cost and availability of healthcare services in Florida.
- How is binding arbitration different from mediation?
- The primary difference between mediation and binding arbitration is that the arbitrators’ decisions are final. In mediation, nothing is determined unless the parties reach an agreement, which is then developed into a formal agreement and signed by the parties and their attorneys. In binding arbitration, the decision of the arbitration panel is legally binding on the parties, whether or not they agree with the result.
- How does the arbitration process work?
- In agreeing to arbitration, the parties agree to give up their constitutional right to have any potential medical malpractice claim resolved in court. Instead, all medical malpractice claims are resolved by a panel of three arbitrators. The process starts with a notice from one party to the other demanding arbitration. The patient and the physician each name one person to serve as an arbitrator. These two arbitrators pick a third arbitrator. Arbitrators are like judges, in that they listen to the evidence presented by both sides and decide whether malpractice occurred. This panel of three arbitrators then sets up rules about the witnesses and evidence each side may present and sets up a schedule for the arbitration. If necessary, the arbitrators issue subpoenas to compel witnesses to appear at the hearing or to obtain documents or other evidence. At the arbitration hearing, each party is represented by his or her own attorney. Each party has the opportunity to present evidence and witnesses and cross-examine the other party’s witnesses. All three arbitrators listen to the evidence and participate in the decision. The arbitrators apply the same law that a court applies, but the procedural rules are more relaxed and the hearing is less formal than a trial. Based on the evidence and the law, the arbitrators can award any amount or any kind of damages that a court can award.
- What does binding arbitration mean?
- Binding arbitration means that the decision of the arbitration panel is final. Neither party can go to court to appeal the arbitrators’ decision, except on very limited grounds. It is called binding arbitration because both sides are bound by the arbitrators’ decision.
- What claims does the arbitration agreement cover?
- The arbitration agreement applies to medical malpractice claims associated with both past and future care and treatment. In addition, the patient agrees that any controversy including, without limitation, claims for medical malpractice, personal injury, loss of consortium, or wrongful death arising out of or in any way relating to the diagnosis, treatment, or care of the patient by the physician, including any partners, agents, or employees of the provider of medical services, shall be submitted to binding arbitration as well.
- What claimant(s) does the arbitration agreement cover?
- Under the agreement, all claims based upon the same occurrence, incident, or care will be arbitrated in one proceeding. The agreement binds all parties whose claims may arise out of or relate to treatment or services provided by the physician, including the patient, the patient’s estate, any spouse or heirs of the patient, and any children of the patient, whether born or unborn, at the time of the occurrence giving rise to the claim. In the case of any pregnant mother, the term “patient” means both the mother and the mother’s expected child or children.
- What if the patient signs the arbitration agreement and later refuses to arbitrate?
- If a patient enters into the agreement and chooses to go to court anyway, the agreement says that the arbitration proceeding can go ahead without the patient, and the patient will be bound by the arbitrators’ decision even if he or she does not participate.
- Should I insist that a patient sign the arbitration agreement before rendering treatment?
- The Doctors Company arbitration program offers two arbitration agreements, which are the same except for one key provision. One agreement (Form A) requires patients to sign the arbitration agreement as a prerequisite for future treatment. The other agreement (Form B) permits a patient to terminate the agreement for a period of 30 days from the date of signing. A failure to formally opt out of the agreement in accordance with the procedures set forth in the agreement within the opt-out period will obligate the patient to follow the agreement.
- What if my patient refuses to sign an arbitration agreement?
- Physicians will have to decide for themselves what is best for them in this circumstance after taking into consideration all ethical, legal, and contractual duties that are owed to the patient and/or third parties.
- Should I present an arbitration agreement to a patient that presents in an emergent or urgent condition?
- No. A patient could attempt to invalidate the arbitration agreement with a claim that he or she was under duress due to the emergent or urgent condition at the time of signing. Physicians should present patients with the arbitration agreement after the emergent or urgent condition has passed. Post-treatment signatures are feasible because past treatment is covered by the arbitration agreement.
- What is the process for having my patient sign an arbitration agreement?
- Provided that a patient is not in an emergent or urgent condition, physicians will present the arbitration agreement to the patient (or his or her representative) and provide him or her with an area to view a video approximately six minutes in duration that explains the purpose and fundamentals of the arbitration agreement. After the patient and/or the patient’s representative has viewed the video, he or she will be asked to sign the arbitration agreement. The patient and/or the patient’s representative should be given a copy of the signed arbitration agreement, and the original should go into the patient’s file.
- What is the purpose of the video?
- The video is very important because the manner in which an agreement is entered into is an important factor in determining its validity. Courts have struck down arbitration agreements due to arguments that an individual did not have any concrete knowledge of the agreement. In order to avoid this problem, a video was created to explain in basic terms the practical and legal effects of signing the arbitration agreement. This process is complemented by the fact that the patient, in signing the arbitration agreement, acknowledges that he or she watched the video, understood it, and had no further questions. The video also relieves physicians and their staff from the burden of having to explain the arbitration agreement, and it ensures that the message is clear, consistent, and reproducible in the event of litigation.
- Is there a cost for the arbitration contract and video?
- No. The Doctors Company will provide the arbitration agreement and video to its member physicians without charge, provided that they complete the order form and sign a participation agreement.
- Are the arbitration contract and video offered in different languages?
- Yes. The arbitration contract and video are offered in English and Spanish.
- Will I get a discount for participating in the arbitration program?
- No. There is no premium discount at this time.
- May I use an arbitration agreement from another source?
- Use of arbitration agreements from other sources likely will not have the benefit of the extensive and careful analysis that has been employed by The Doctors Company. Therefore, we strongly recommend that our member physicians use our version of the arbitration agreement and video.
- What effect will the use of the arbitration agreement have on my managed care contracts?
- Physicians will have to carefully review their contractual arrangements with their managed care organizations to determine what effect, if any, implementing the arbitration agreement will have on their business relationship with their managed care organizations.
- Will my professional liability policy cover me for the cost of the arbitration?
- Yes, provided that you have coverage for the claim under the terms of your medical professional liability policy with The Doctors Company.
- How can I participate in the arbitration program?
- Physicians must complete the order form and sign the arbitration participation agreement. Upon completion of this form and agreement, you will receive an arbitration contract and video in the mail within 10 business days.
- How can I get more information about the arbitration program?
- You can request a detailed informational DVD by calling (800) 741-3742, extension 3280.