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| Shapiro, Washburn & Sharp

The Florida Supreme Court recently issued an important opinion in the world of medical malpractice that will hopefully serve as an example to courts in other states about the serious downsides of arbitration agreements.

The recently decided case originated in Duval County after a woman sued on behalf of her late husband, Joseph Franks, who died in February 2009 from complications related to a hernia surgery. Prior to undergoing surgery Franks signed an arbitration agreement with the surgical practice that was conducting his operation, North Florida Surgeons.

The issue that the Florida Supreme Court was left to decide was whether the arbitration agreement, which contained very friendly terms for the medical group, should be upheld. The justices voted 5-2 to side with Franks’ widow, saying that the arbitration agreement was void on public policy grounds. Specifically, the Court held that the arbitration agreement was invalid because it contained terms that were wildly different than the medical malpractice laws in place in Florida.

The justices had problems with provisions in the agreement that limited the amount of non-economic damages (meaning pain and suffering) that injured patients were allowed to collect. The North Florida Surgeons’ arbitration agreement required patients to agree to a cap of $250,000, this despite state law saying such non-economic damages can go as high as $1 million.

Though the case concerned a hernia operation in Florida, consumer advocates say the recent decision is actually part of a much larger debate going on in the legal community about the validity of arbitration agreements that some healthcare providers ask patients to sign before receiving care. Though the agreements exist in the case of medical procedures, like this case, the nursing home industry is also fond of using arbitration agreements as a tool to prevent lawsuits from injured or abused patients from ever going before a jury. It’s nice to know that judges are realizing the potential harm such agreement can cause patients who are later prevented from collecting damages for serious harm done to themselves or loved ones.


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