A private arbitration agreement in a medical malpractice action that failed to adopt the necessary statutory provisions of Chapter 766, Florida Statutes (2012), was found to be unenforceable.

The plaintiffs appealed an order issued in the Circuit Court of Orange County which compelled arbitration in a medical malpractice action pursuant to a private arbitration agreement that did not adopt the necessary statutory provisions of Chapter 766, Florida Statutes (2012). The Fifth District Court of Appeals held that the arbitration agreement violated the public policy pronounced by the legislature in the Medical Malpractice Act, Chapter 766, Florida Statutes (2012), by failing to adopt the necessary statutory provisions. The court reasoned that any contract seeking to enjoy the benefits of the arbitration provisions under the statutory scheme must necessarily adopt all of its provisions. Therefore, the court reversed the trial court order compelling binding arbitration and remanded the case to the trial court for further proceedings. The court further certified conflict with the decision of the Second District Court of Appeal in Santiago v. Baker, 135 So. 3d 569 (Fla. 2d DCA 2014), which found that a similar arbitration agreement was valid and enforceable because nothing in § 766.207, Fla. Stat. (2011) specifically prohibited parties from arbitrating their claims by private agreement outside the statutory scheme. Until the Florida Supreme Court resolves the conflict, similar private arbitration agreements in medical malpractice actions in the Fifth District will be unenforceable, while the same agreements in the Second District will be enforceable.

Case Law Alerts, 1st Quarter, January 2015