Florida/Georgia Personal Injury & Workers Compensation

...9 for "future benefits to be paid" to the injured employee. In the context of arbitration of medical malpractice cases, the Legislature has provided that "[d]amages for future economic losses shall be... offset by future collateral source payments." § 766.207(7)(c), Fla....

...Phillipe, 699 So.2d at 1020. Second, the district court certified the following question: WHEN THE ALLEGED MEDICAL NEGLIGENCE RESULTS IN THE DEATH OF THE PATIENT, DOES THE CAP ON NONECONOMIC DAMAGES OF $250,000 PER INCIDENT IN A VOLUNTARY ARBITRATION UNDER § 766.207 APPLY TO EACH BENEFICIARY UNDER THE WRONGFUL DEATH ACT, OR DOES THE $250,000 CAP APPLY IN THE AGGREGATE TO INCLUDE ALL WRONGFUL DEATH ACT BENEFICIARIES? Id....

...wrongful death action against St. Mary's Hospital on behalf of himself and the decedent's four surviving children. The parties in this case chose to proceed under the statutory alternative dispute process for medical malpractice claims set forth in section 766.207, Florida Statutes (1997)....

...The district court certified to this Court the question of the constitutionality of section 766.212(2). St. Mary's next argued that the arbitrators' total award of noneconomic damages in the amount of $1,025,000 exceeded the $250,000 cap set forth in section 766.207(7)(b)....

...ely to each wrongful death beneficiary. The district court agreed with St. Mary's. The court concluded that the plain language of the statute indicates that "there can be no more than $250,000 in non-economic damages awarded by the arbitrators under section 766.207, no matter how many different people may have a direct benefit in the award, or the source of their entitlement to share in the award." Id....

...The district court disagreed, holding that the elements of economic damages available in a voluntary binding arbitration of a medical malpractice claim are controlled by the Medical Malpractice Act rather than the Wrongful Death Act and that sections 766.202(3) and 766.207(7)(a) of the Medical Malpractice Act permit the award for loss of earning capacity....

...The Medical Malpractice Act establishes a scheme for the payment of an arbitration award. To that end, sections 766.211 and 766.212 provide as follows: 766.211. Payment of arbitration award; interest.— (1) Within 20 days after the determination of damages by the arbitration panel pursuant to s. 766.207, the defendant shall: (a) Pay the arbitration award, including interest at the legal rate, to the claimant; or (b) Submit any dispute among multiple defendants to arbitration pursuant to s. 766.208. (2) Commencing 90 days after the award rendered in the arbitration procedure pursuant to s. 766.207, such award shall begin to accrue interest at the rate of 18 percent per year....

...0 "per incident" limitation of noneconomic damages in the arbitration provisions of the Medical Malpractice Act limits the total recovery of all claimants in the aggregate to $250,000 or limits the recovery of each claimant individually to $250,000. Section 766.207(7)(b) is the provision setting forth the $250,000 noneconomic damages cap....

...n a percentage basis with respect to capacity to enjoy life, so that a finding that the claimant's injuries resulted in a 50-percent reduction in his or her capacity to enjoy life would warrant an award of not more than $125,000 noneconomic damages. Section 766.207(7)(b) (emphasis added)....

...the damages per individual claimant. They also assert that the arbitration provisions of the Medical Malpractice Act as interpreted by the district court violate their constitutional rights to equal protection under the law. St. Mary's contends that section 766.207(7)(b) is clear and unambiguous and that a plain meaning construction of the statute indicates that the Legislature intended to limit noneconomic damages to $250,000 per incident in the aggregate....

...Lake Howell Water & Reclamation Dist., 274 So.2d 522 (Fla.1973) (holding that legislative intent should be gathered from consideration *968 of the statute as a whole rather than from any one part thereof). An examination of the entire statute demonstrates that section 766.207(7)(b) is neither clear nor unambiguous. Section 766.207(7)(b) does state that "noneconomic damages shall be limited to a maximum of $250,000 per incident "; however, within that same provision the statute goes on to describe how these damages shall be calculated, and in so doing refers to "claimant" in the singular. See § 766.207(7)(b), Fla. Stat. (1999). Likewise, section 766.207(7)(k) states that: Any offer by a claimant to arbitrate must be made to each defendant against whom the claimant has made a claim....

...races more than the patient who directly experienced the departure from the standard of care by the health care provider), review denied, 666 So.2d 901 (Fla.1996). When referring to multiple parties, the statute is also perfectly clear. For example, section 766.207(4), which sets forth the composition of the arbitration panel, states that In the event of multiple plaintiffs or multiple defendants, the arbitrator selected by the side with multiple parties shall be the choice of those parties....

..., when totaled with all other claims or judgments paid by the state or its agencies or subdivision arising out of the same incident or occurrence, exceeds the sum of $200,000. § 768.28(5), Fla. Stat. (1999) (emphasis added). Therefore, we find that section 766.207(7)(b) is neither clear nor unambiguous....

...amages. This limitation provides liability insurers with the ability to improve the predictability of the outcome of claims for the purpose of loss planning in risk assessment for premium purposes. This predictability can be obtained by interpreting section 766.207(7)(b) so that each claimant is fairly and reasonably compensated for his or her pain and suffering....

...Finally, were we to interpret the noneconomic damages cap to apply to all claimants in the aggregate, we conclude that such an interpretation would create equal protection concerns. Franzen correctly points out that this Court in Echarte addressed the constitutionality of sections 766.207 and 766.209; however, in that case we were not presented with the specific challenge that this case poses. [3] The instant case poses the question of how section 766.207(7)(b) relates to a circumstance where there is one medical malpractice incident and multiple claimants versus the situation where there is one medical malpractice incident and only a single claimant....

...and unrelated to any state interest. See Vildibill v. Johnson, 492 So.2d 1047, 1050 (Fla. 1986). Moreover, it is erroneous to claim that this defect can be overcome by the fact that arbitration is voluntary. Arbitration is not voluntary according to section 766.207(7)(k) because "a claimant who rejects a defendant's offer to arbitrate shall be subject to the provisions of section 766.209(4)," which limits the noneconomic damages to be awardable at trial to $350,000....

...2. Three provisions of the Medical Malpractice Act discuss economic damages. Section 766.202(3) defines "economic damages" as "including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity." Section 766.207(7)(a) provides that arbitration shall be undertaken with the understanding that "[n]et economic damages shall be awardable, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earnin...

...We conclude that the arbitration provisions of the Medical Malpractice Act expressly specify the elements of all of the damages available when the parties agree to binding arbitration, regardless of whether the medical malpractice action involves a wrongful death. The plain language of sections 766.202(3) and 766.207(7)(a) indicates that the full range of economic damages is available to claimants as an incentive to forego a jury trial on damages and proceed to arbitration....

...Limitations on the noneconomic damages components of large awards to provide increased predictability of outcome of the claims resolution process for insurer anticipated losses planning, and to facilitate early resolution of medical negligence claims. [3] In Echarte, the issue presented was whether sections 766.207 and 766.209 violate a claimant's right of access to the courts....

...Wasson, Miami, amicus curiae for Academy of Florida Trial Lawyers. HARDING, Justice. We have for review University of Miami v. Echarte, 585 So.2d 293 (Fla. 3d DCA 1991), in which the Third District Court of Appeal affirmed the trial court's ruling that sections 766.207 and 766.209, Florida Statutes (Supp. 1988), violated the Florida Constitution. We have jurisdiction based on article V, section 3(b)(1) of the Florida Constitution. The issue here is whether sections 766.207 and 766.209, which provide a monetary cap on noneconomic damages in medical malpractice claims when a party requests arbitration, violate a claimant's right of access to the courts....

...r life. Patricia and her parents (Echartes) gave the University notice of intent to initiate a malpractice action. [3] In response, the University requested that the Echartes submit their damages to a medical negligence arbitration panel pursuant to section 766.207(2). The Echartes filed an action for a declaratory judgment questioning the constitutionality of sections 766.207 and 766.209....

...§ 766.203(3), Fla. Stat. (Supp. 1988). If the claimant's reasonable grounds for the medical negligence claim are intact at the completion of the presuit investigation, either party may request that a medical arbitration panel determine the amount of damages. § 766.207(2), Fla. Stat. (Supp. 1988). Section 766.207 provides that upon such request, the opposing party's agreement to participate in arbitration binds both parties to the arbitration panel's decision and precludes other remedies by the claimant against the defendant. Under section 766.207(7) a claimant can recover net economic damages of past and future medical expenses and eighty percent of lost wages and earning capacity. The claimant's noneconomic damages [14] are "limited to a maximum of $250,000 per incident," and are "calculated on a percentage basis with respect to capacity to enjoy life." [15] § 766.207(7). Finally, section 766.211, Florida Statutes (Supp. 1988), provides for prompt payment of the award to the claimant, including interest at the legal rate and a penalty rate if the defendant fails to pay within ninety days of the award. Section 766.207(7) holds the defendant responsible for the prompt payment of the arbitration award and interest on all accrued damages, payment of the claimant's reasonable attorney's fees and costs as determined by the arbitration panel up to fifteen percent of the award, and payment of all arbitration costs. In addition, section 766.207(7)(h) holds each defendant participating in the arbitration proceeding jointly and severally liable for all damages assessed by the panel. Section 766.207(7)(k) provides that if a defendant rejects a claimant's offer to arbitrate, then section 766.209(3), Florida Statutes (Supp....

...Thus, the law is clear that the Legislature cannot restrict damages by either enacting a minimum damage amount or a monetary damage cap without meeting the Kluger test. Id. The initial question in the instant case is whether the arbitration statutes, which include the non-economic damage caps found in sections 766.207 and 766.209, provide claimants with a "commensurate benefit" for the loss of the right to fully recover non-economic damages. Sections 766.207 and 766.209 only limit a claimant's right to recover non-economic damages after a defendant agrees to submit the claimant's action to arbitration....

...necessary to meet the medical malpractice insurance crisis. Further, no alternative or less onerous method of meeting the crisis has been shown. Therefore, *198 we hold that the second prong of Kluger is satisfied. Accordingly, we hold that sections 766.207 and 766.209 are constitutional....

...[20] Kluger, 281 So.2d at 4; Overland Const. Co. v. Sirmons, 369 So.2d 572, 574 (Fla. 1979). For the reasons stated above, I would find the statutes unconstitutional. SHAW, J., concurs. SHAW, Justice, dissenting. I agree with the courts below that sections 766.207 and 766.209, Florida Statutes (Supp....

...2d DCA 1992); McDonald v. Department of Banking & Fin., 346 So.2d 569, 585 (Fla. 1st DCA 1977). Thus a relaxed standard of admitting evidence is irrelevant to the quid pro quo evaluation. The negligent party can unilaterally limit the claimant's noneconomic damages, § 766.207(2), whether the claimant accepts arbitration, § 766.207(7)(b), or goes to trial....

...giving rise to the cause of action, including pain and suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life, and other nonfinancial losses." § 766.202(7), Fla. Stat. (Supp. 1988). [15] Section 766.207(7)(b), Florida Statutes (Supp....

...etermine the amount of taxable costs and prejudgment interest to be assessed. The facts are undisputed. The plaintiffs, Martin and Irene Graber, filed a medical malpractice action against several defendants. The plaintiffs offered to arbitrate under section 766.207(2)....

...Once an action has been filed, the court may require, upon motion by a health care provider, that the claim be submitted to an arbitration process that is totally nonbinding. See § 766.107, Fla. Stat. (2003). In the alternative, the parties may mutually agree to binding arbitration. See § 766.207, Fla....

...It is also vital to note the damage caps which now exist within the medical negligence statutory provisions, which are rarely mentioned but will continue to remain in effect should the proposed amendment be adopted. If the parties agree to binding arbitration pursuant to section 766.207, economic damages, including past and future medical expenses and eighty percent of wage loss [2] and loss of earning capacity can be awarded, offset, however, by collateral source payments. In this process, noneconomic damages are capped at $250,000 with future economic losses available, but they must be paid in periodic installments. Punitive damages are not available no matter how egregious the conduct may be. See § 766.207, Fla....

...vors." On April 21, 1994, at the close of the ninety-day presuit screening process, Palmetto mailed the Bombaliers a letter offering to admit liability as to both claims and to arbitrate the issue of damages pursuant to sections 766.106(3)(b)(3) and 766.207, Florida Statutes (1993)....

...Under the presuit screening statutes, the claimants have the option of determining the number of claims and/or claimants to be joined in a single notice of intent to initiate medical malpractice litigation. Fla. Stat. § 766.106(2) (1993). Pursuant to section 766.207(7)(k), Florida Statutes (1993), the hospital was statutorily required to extend any offer to arbitrate to all claimants who had joined the notice of intent to initiate medical malpractice litigation, and it did so....

...inal judgment in its favor on its Petition for Declaratory Decree, and the Court declares as follows: 10. The Bombaliers' response constituted a rejection of the offer to arbitrate; therefore, the parties shall not proceed to arbitration pursuant to section 766.207, Florida Statutes (1993), but shall proceed to litigate all issues involving the Bombaliers' claims, including liability, in Circuit Court....

...n and construction. The statute must be given its plain and obvious meaning. Construction of a statute which would lead to an absurd result should be avoided. Winter v. Playa del Sol, Inc., 353 So.2d 598, 599 (Fla. 4th DCA 1977) (citations omitted). Section 766.207(7)(k), Florida Statutes (1993), reads, in pertinent part, as follows: "Any offer by a defendant to arbitrate must be made to each claimant who has joined in the notice of intent to initiate litigation......

...but not limited to, damages for pain and suffering) shall be limited to a maximum of $250,000 per incident, and shall be calculated on a percentage basis with respect to capacity to enjoy life, pursuant to the formula contained in Florida Statutes, Section 766.207....

...(l) The hearing shall be conducted by all of the arbitrators, but a majority may determine any question of fact and render a final decision. The chief arbitrator shall decide all evidentiary matters. The provisions of this subsection shall not preclude settlement at any time by mutual agreement of the parties. § 766.207(1)-(3), (7), Fla....

...claims.”). Under the statute, Franks would be entitled to receive a maximum of $1 million if the case proceeded to court without either party seeking arbitration, or if Dr. Bowers and NFS refused to proceed with arbitration under the conditions of section 766.207....

...death, the total noneconomic damages recoverable from all practitioners ... under this paragraph shall not exceed $1 million”). Under the Financial Agreement, Franks could only receive a maximum of $250,000. Further, the agreement dispenses with the inherent concession of liability provided by section 766.207. See § 766.207(2), Fla....

...nstitution. [41] The plaintiffs assert that the Florida Supreme Court would find an equal protection violation under the Florida Constitution, relying on St. Mary's Hospital. [42] There, the court construed an earlier arbitration statute, Fla. Stat. § 766.207(7)(b)(1997), which limited noneconomic damages to "$250,000 per incident." The court found the 1997 arbitration statute ambiguous because it was not clear whether the cap should be applied to multiple claimants individually or in the aggregate....

...to obtain a stay pending appellate review of the judgment on the award. First, they filed a motion for stay pending review in this court pursuant to section 766.212(2), which allows the district court to stay an arbitration award entered pursuant to section 766.207 but only to prevent manifest injustice. See §§ 766.207 and 766.212(2), Fla....

...Section 766.106(12) provides that: "To the extent not inconsistent with this part, the provisions of chapter 682, the Florida Arbitration Code, shall be applicable to such proceedings." On the other hand, the parties may elect to submit the issue of damages to an arbitration panel in accordance with section 766.207, and review of the award will be in accordance with section 766.212. Unlike section 766.106, section 766.207 does not contain a provision applying the arbitration code in chapter 682. In this case, arbitration was clearly initiated by the parties themselves under section 766.207....

...fficient substitute for the common law right of an ordinary damages action. In so doing, the court explained: "The initial question in the instant case is whether the arbitration statutes, which include the non-economic damage caps found in sections 766.207 and 766.209, provide claimants with a `commensurate benefit' for the loss of the right to fully recover non-economic damages. Sections 766.207 and 766.209 only limit a claimant's right to recover non-economic damages after a defendant agrees to submit the claimant's action to arbitration....

...tion award requiring a showing of `manifest injustice. '" [emphasis supplied] 618 So.2d at 194. According to claimants, this highlighted portion of the Echarte opinion places severe limits on the kind of review may give to an arbitration award under section 766.207....

...ypes and amount of damages awarded. We agree with the defendants' reading of section 766.212(1) as to the standard of review. In this statutory text, the legislature has created a hybrid form of limited review of malpractice arbitration awards under section 766.207(2)....

...In reviewing the amount of damages, we are not limited—as claimants contend—to determining solely whether there is substantial competent evidence to support the amount awarded and whether the proper procedure was followed by the arbitrators. Because this was an arbitration under section 766.207 in which subsection (2)(b) expressly limits awards of non-economic damages to $250,000 per incident, we conclude that the legislature intended for the court to review whether the amount of damages exceeds the statutory limits. In other words, the power to review the amount necessarily comprehends whether the amount exceeds the limit. We therefore pass on to that question. B. The Statutory Limit We begin this analysis, of course, with the pertinent statutory text of section 766.207: "(7) Arbitration pursuant to this section shall preclude recourse to any other remedy by the claimant against any participating defendant, and shall be undertaken with the understanding that: (a) Net economic damages shall be awardab...

...Hence, using only the text given us by the legislature—however many individual claimants there may be from a single incident of malpractice on a patient— there is only one incident of malpractice in this case. It follows that there can be no more than $250,000 in non-economic damages awarded by the arbitrators under section 766.207, no matter how many different people may have a direct benefit in the award, or the source of their entitlement to share in the award. If $250,000 is too little for multiple beneficiaries of the nominal claimant, their remedy is not to agree to arbitration. After all, section 766.207 does not require anyone to agree to arbitration....

...First, we find no error in the arbitrators awarding economic damages paid over a period of 10 years rather than the life expectancy of the decedent. Defendants' argument would require us to read into the statutes a requirement that the number of payments coincide with the life expectancy of the victim. Section 766.207(7)(c) provides that "[d]amages for future economic losses shall be awarded to be paid by periodic payments pursuant to s....

...See §§ 766.202(3) ("`Economic damages' means financial losses which would not have occurred but for the injury giving rise to the cause of action, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity.") and 766.207(7)(a) ("Arbitration pursuant to this section shall preclude recourse to any other remedy by the claimant against any participating defendant, and shall be undertaken with the understanding that ......

...Mogler, ___ So.2d ___, 1997 WL 656303, Case No. 96-2356 (Fla. 4th DCA October 22, 1997), namely: When the alleged medical negligence results in the death of the patient, does the cap on non-economic damages of $250,000 per incident in a voluntary arbitration under § 766.207 apply to each beneficiary under the Wrongful Death Act, or does the $250,000 cap apply in the aggregate to include all Wrongful Death Act beneficiaries? GUNTHER and FARMER, JJ., and MAY, MELANIE G., Associate Judge, concur....

...submitted to arbitration. [5] These provisions were substantially rewritten by the legislature in 1996. See Ch. 96-159, Laws of Fla. [6] Although our opinion did not specify the basis for the arbitration occurring in Mogler, it was instituted under section 766.207, as in this case....

...in a hospital owned and operated by Healthmark of Walton, Incorporated, doing business as Walton Regional Hospital (hospital). The hospital and its insurer offered to admit liability and submit the issue of damages to binding arbitration pursuant to Section 766.207, Florida Statutes (1993)....

...Daye said: ‘We’ve investigated, we know what we’re doing. You must cooperate with us, and it has to be done immediately.” Mr. Daye then sent the following letter on the insurer’s letterhead to Yell’s attorney: “Pursuant to Florida Statute 766.106 and 766.207 on behalf of Walton Regional Hospital, we are making an offer to admit liability as to any claim of Linda S....

...ance coverage by the insurer. We affirm without discussion the cross-appeal. AFFIRMED in part and REVERSED in part and REMANDED. ERVIN and PADOVANO, JJ., CONCUR. . Dr. Thompson is a doctor of philosophy in administration; he has no medical degree. . Section 766.207(7)(b), Florida Statutes (1993), caps the patient's non-economic damages at $250,000.

...However, the legislature also adopted a completely separate set of procedures for admission of liability and voluntary binding arbitration of damages. Ch. 88-1, §§ 54-59, at 169-73, Laws of Fla.; ch. 88-277, §§ 30-35, at 1476-82, Laws of Fla. Those provisions were subsequently codified as sections 766.207 through 766.212, Florida Statutes (1993)....

...While the motivation for enactment of those provisions is explained in section 766.201(2)(b), no reference is made to the provisions regarding admission of liability and voluntary binding arbitration of damages already set forth in section 766.106, or to the intended interplay, if any, between section 766.106 and sections 766.207 through 766.212....

...Limitations on the noneconomic damages components of large awards to provide increased predictability of outcome of the claims resolution process for insurer anticipated losses planning, and to facilitate early resolution of medical negligence claims. To the extent relevant, sections 766.207 through 766.212, Florida Statutes (1993), read: 766.207 Voluntary binding arbitration of medical negligence claims....

...n the request of a party, for such judgments. As should be apparent from the foregoing, much of that portion of section 766.106 relating to voluntary binding arbitration of damages is inconsistent, and irreconcilable, with the provisions of sections 766.207 through 766.212. Adding to the confusion created by the inconsistencies between section 766.106 and sections 766.207 through 766.212 is the fact that the parties elected not to follow either procedure in all details. Instead, they chose to arbitrate using what might best be described as a hybrid of the two. In particular, they appear to have decided that, while most of the provisions of section 766.207 would be followed, some very important provisions would not — no hearing officer from the Division of Administrative Hearings participated in the arbitration, and the arbitration was not conducted according to the rules promulgated by the Division....

...one arbitrator, and those two then decided upon the third. All three arbitrators were attorneys in private practice, with extensive experience in medical malpractice litigation. We conclude that the parties' failure to comply with the provisions of section 766.207(4) requiring that "the chief arbitrator" be a hearing officer from the Division of Administrative Hearings precludes the parties from relying, on appeal, on the arbitration scheme set out in sections 766.207 through 766.212....

...y the legislature to be a critical feature of the arbitration scheme set out in those sections. This is why, for instance, it is specified that "evidentiary standards" shall be those found in section 120.58(1)(a) of the Administrative Procedure Act. § 766.207(2), Fla. Stat. (1993). It is also why the Division of Administrative Hearings is authorized to adopt rules applicable to the process. § 766.207(9), Fla. Stat. (1993). (In fact, the Division of Administrative Hearings has adopted an entire chapter of detailed rules for arbitration pursuant to sections 766.207 through 766.212....

...Code, and appellees had failed to establish that they were entitled to enforcement pursuant to that section. As discussed above, we have concluded that the parties are precluded from relying, on appeal, on the arbitration scheme set out in sections 766.207 through 766.212....

...Arbitrators awarded the husband and the injured child $250,000 each in noneconomic damages. They awarded the three remaining children $175,000 each in noneconomic damages. The hospital appealed, arguing that the multiple noneconomic damage awards exceeded the cap of $250,000 per incident in violation of section 766.207(7)(b), Florida Statutes....

...Robert A. Butterworth, Atty. Gen. and Louis F. Hubener, Asst. Atty. Gen., for the State, as amici curiae. Before NESBITT, BASKIN and JORGENSON, JJ. BASKIN, Judge. The University of Miami [1] [University] appeals a final summary judgment declaring sections 766.207 [2] and *295 766.209, [3] Florida Statutes (Supp. 1988), unconstitutional. We affirm, and in so doing, hold that sections 766.207 and 766.209 fail the test enunciated in Kluger v....

...Pursuant to section 766.106, Florida Statutes (Supp. 1988), Patricia and her parents delivered to the University a notice of intent to initiate malpractice litigation. The University served the Echartes with a request for voluntary binding arbitration of damages. § 766.207(2), Fla. Stat. (Supp. 1988). In response, the Echartes filed an action for declaratory judgment to determine the constitutionality *296 of sections 766.207 and 766.209....

...The trial court held unconstitutional statutes limiting recovery of damages for a claimant's loss of income and loss of earning capacity, and capping a claimant's non-economic damages [14] in medical malpractice actions when a defendant concedes liability and requests arbitration. Specifically, section 766.207(2) provides for voluntary binding arbitration of medical negligence claims upon election of either party following "completion of presuit investigation with preliminary reasonable grounds for a medical malpractice claim intact... ." § 766.207(2), Fla. Stat. (Supp. 1988). The remainder of section 766.207 sets forth the procedures and consequences pertaining to the arbitration of claims. Section 766.207(7) delineates the damages claimant is entitled to recover in the arbitration, capping claimant's noneconomic damages at $250,000....

...entitled to recover prejudgment interest and reasonable attorney's fees up to 25 percent of the award reduced to present value." § 766.209(3)(a), Fla. Stat. (Supp. 1988). We need not consider all the asserted arguments because we hold that sections 766.207 and 766.209 offend article I, section 21, of the Florida Constitution....

...es in excess of the cap is not dependent on insurance coverage and claimant is not assured recovery of its allowable losses. The statutory scheme does provide certain benefits to claimants. These benefits may include the right to demand arbitration, § 766.207(2), reasonable attorney's fees and costs, § 766.207(7)(b), interest on all accrued damages, § 766.207(7)(e), arbitration costs and fees, § 766.207(7)(g). In addition, defendants are held jointly and severally liable for damages awarded to claimant. § 766.207(7)(h)....

...[O]urs is not such a system." Smith, 507 So.2d at 1089 (emphasis supplied). Accordingly, we hold that the legislative findings do not satisfy this prong of the Kluger test. In conclusion, we affirm the final summary judgment and hold that sections 766.207 and 766.209 violate article I, section 21, of the Florida Constitution. Affirmed. NOTES [1] The University of Miami d/b/a The University of Miami School of Medicine, a Florida corporation. [2] Section 766.207, Florida Statutes (Supp....

...ated on a percentage basis with respect to capacity to enjoy life, so that a finding that the claimant's injuries resulted in a 50-percent reduction in his capacity to enjoy life would warrant an award of not more than $125,000 noneconomic damages." § 766.207(7)(b), Fla....

...Court shall automatically review every judgment of conviction and sentence of death” (alteration in original) (emphasis added)), and St. Mary’s Hosp., Inc. v. Phillipe, 769 So.2d 961, 972 (Fla. 2000) (“Arbitration is not voluntary according to section 766.207(7)(k) because ‘a claimant who rejects a defendant’s offer to arbitrate shall be subject to the provisions of section 766.209(4),’ which limits the non-economic damages to be awardable at trial to $350,000.” (emphasis added)), with Fallis v....

LAGOA, J. Estrella Estrada (“Estrada”) and her husband, Carlos Estrada, appeal from an arbitration award in a medical negligence claim. The single issue raised on appeal concerns the interpretation of section 766.207(7)(a), Florida Statutes (2012), which provides for an award of loss of earning capacity in voluntary binding arbitration of medical negligence claims....

...Two-and-a-half years later, Estrada was diagnosed with stage 3C breast cancer. Estrada has undergone extensive treatment, but currently works full time in the same profession as she did prior to her diagnosis. Under the alternative arbitration procedure for medical negligence claims set forth in section 766.207, 1 Estrada and *53 her husband Carlos, and Mercy Hospital, Inc., South Florida Medical Imaging, P.A., and Amisha Agarwal, M.D....

...(collectively, “Mercy”), voluntarily agreed to have the issue of damages arising from “the medical malpractice incident regarding a mammography performed on September 5, 2007, involving Estrella Estrada and a delay in diagnosis of breast cancer” determined by an arbitration panel. See § 766.207(2), Fla....

...rella Estrada.” 3 Estrada appeals from the panel’s award. See § 766.212(1), Fla. Stat. (2012); § 120.68, Fla. Stat. (2012). II. STANDARD OF REVIEW In a medical negligence claim, an arbitration panel’s award of economic damages is governed by section 766.207(7)....

...t, subject to the following limitations: (a) Net economic damages shall be awardable, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity, offset by any collateral source payments. § 766.207(7)(a), Fla. Stat. (2012). Furthermore, “economic damages,” as used in section 766.207, is defined as follows: “Economic damages” means financial losses that would not have occurred but for the injury giving rise to the cause of action, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity to the extent the claimant is entitled to recover such damages under general law, including the Wrongful Death Act. § 766.202(3), Fla. Stat. (2012). An award made pursuant to section 766.207(7) is treated as final agency action....

...for its negligence. For the above reasons, we reverse the award of loss of earning capacity, and remand with directions for the arbitration panel to recalculate the award based upon Estrada’s pre-injury life expectancy. . “In a proceeding under section 766.207, the liability of the defendants is admitted....

...Waas, Coral Gables; Wicker, Smith, O'Hara, McCoy & Ford, P.A. and William F. Fink, Miami, for appellees. Before COPE, WELLS and SALTER, JJ. COPE, J. This is an appeal of an arbitration award in a medical negligence case. The question is how to interpret section 766.207, Florida Statutes (2008), which provides for voluntary binding arbitration of medical negligence claims....

...(doing business as Palmetto General Hospital), Doctor Abdul-Rahman Jaraki, and Jaraki Medical Care, P.A. The claim was negligence in the performance of a heart procedure on William S. Deno, following which he died. Lifemark made an offer to arbitrate under section 766.207. Dr. Jaraki and Jaraki Medical Care, P.A., made a separate offer to arbitrate. The Estate accepted the offers and the two arbitration proceedings were consolidated. In a proceeding under section 766.207, the liability of the defendants is admitted....

...The only issue is damages. Those are set by a panel of three arbitrators, one selected by the claimant, one selected by the defendant, and an administrative law judge designated by the Division of Administrative Hearings who serves as the chief arbitrator. Id. § 766.207(4). Defendants who submit to arbitration under section 766.207 are jointly and severally liable for all damages assessed. Id. § 766.207(7)(h). The issue before us is how to calculate the statutory limitation on non-economic damages. The statute provides that "[n]on-economic damages shall be limited to a maximum of $250,000 per incident...." Id. § 766.207(7)(b)....

...ward may be appealed to the District Court of Appeal. § 766.212(1), Fla. Stat. (2008). The Estate has appealed. We agree with the arbitration panel. Under the statute, the arbitration panel awards both economic damages and non-economic damages. Id. § 766.207(7)(a), (b)....

...ON MOTION FOR REHEARING OR CLARIFICATION We deny Afonso's motion for rehearing, but grant clarification by withdrawing our opinion filed on December 24, 2008, and substituting the following: *766 This is an appeal involving an arbitration award which presents a question of statutory construction, namely, whether section 766.207(7), Florida Statutes (2003), limits awardable economic damages in arbitrations to those damages available under the Wrongful Death Act....

...exis Afonso on April 10, 2004. He died at age forty-seven during his care and treatment for a flesh eating bacteria. Following a pre-suit investigation, the hospital requested, and Afonso agreed, to voluntary binding arbitration pursuant to sections 766.207(2) and (3), Florida Statutes (2003). The arbitration panel decided that the economic damages recoverable pursuant to sections 766.202(3) and 766.207(7), were not limited to the damages available under the Wrongful Death Act, section 768.21, Florida Statutes....

...e Act expressly specify the elements of all of the damages available when the parties agree to binding arbitration, regardless of whether the medical malpractice action involves a wrongful death. After that decision, however, the legislature amended section 766.207(7) in 2003 and added the underlined language as follows: 766.207(7)—Arbitration pursuant to this section shall preclude recourse to any other remedy by the Claimant against any participating Defendant, and shall be undertaken with the understanding that damages shall be awarded as provided by general law,...

...loss of earning capacity to the extent the claimant is entitled to recover such damages under general law, including the Wrongful Death Act. *767 The arbitration panel rejected the hospital's argument that the 2003 amendments to sections 766.202 and 766.207(7) limited Afonso's economic damages to those recoverable in a wrongful death action. The panel concluded that the provisions following the "subject to the following limitations language" in section 766.207(7) did not limit the economic damages that could be awarded to those available pursuant to the Wrongful Death Act, but instead supplemented the damages that could be awarded pursuant to that Act....

...fically authorized reference to the Wrongful Death Act, where appropriate, but "subject to the following limitations." Thus, provisions in the Wrongful Death Act may be relevant in medical malpractice arbitration but are subject to the provisions in Section 766.207(7)....

..., the medical malpractice arbitration statute controls. This conclusion is dictated by the language of the amendment, which requires that damages are "subject to the following limitations," and those limitations are the items of damages set forth in Section 766.207, Florida Statutes. On this appeal, both sides have argued that the statute is unambiguous. We do not agree that section 766.207(7) is unambiguous....

...ch would support the hospital's position? If it modifies "the Wrongful Death Act," so as to supplement the damages otherwise awardable under the Wrongful Death Act, why would the legislature use the word "limitations"? Whatever clarity is lacking in section 766.207(7) seems to have been resolved in section 766.202(3), where the legislature added the language, "to the extent the claimant is entitled to recover such damages under general law, including the Wrongful Death Act." Only a strained read...

...Contemporaneously enacted amendments should not be construed to negate one another. See American Home Assur. Co. v. Plaza Materials Corp., 908 So.2d 360, 368 (Fla.2005). Here, construing the "subject to the following limitations" language added to section 766.207(7) to permit the recovery of loss of earning capacity damages would negate the language simultaneously added to section 766.202(3). That language provides for recovery of economic damages only "to the extent" claimants are entitled to recover them under the Wrongful Death Act. Section 766.202(3) must be read in pari materia with section 766.207(7)....

...amages, which included past and future medical expenses and eighty percent of wage loss and loss of earning capacity (damages twenty percent less than the claimants would have received in court), did not violate the access to courts provision. See §§ 766.207, .209 Rule 3.3(b) Fla....

...the suit below. We deny the writ. DeYoung sent Cohen a notice of intent to initiate litigation pursuant to the medical malpractice statute. [1] At the end of the presuit period, Cohen requested voluntary binding arbitration to determine damages. See § 766.207, et seq. DeYoung rejected the offer to arbitrate and filed suit. In their answer, Cohen asserted, as an affirmative defense, that they were entitled to the damages cap set forth in sections 766.207 and 766.209, Florida Statutes....

...s not substantively unconscionable. Nothing in the record before this court supports a finding that the Agreement is unreasonable or unfair. In fact, both the procedural and substantive provisions of the Agreement essentially track the provisions of section 766.207, Florida Statutes (2004), which governs voluntary binding arbitration of medical malpractice claims. Given the strong similarities between the provisions of the Agreement and the provisions of section 766.207, the Agreement cannot be considered *1198 so outrageous as to shock the judicial conscience....

...verning medical malpractice claims shall apply to the parties and/or elaimant(s) in all respects except that at the conclusion of the pre-suit screening period and provided there is no mutual agreement to arbitrate under Florida Statutes, 766.106 or 766.207, the parties and/or claimant(s) shall resolve any claim through arbitration pursuant to this Agreement....

...The agreement was also signed by Robert Yelverton, M.D., *24 Chief Medical Officer, on behalf of Women’s Care Florida and as an agent of its physicians, partners, and employees. On August 29, 2013, Mr. and Mrs. Cres-po requested binding arbitration pursuant to section 766.207, Florida Statutes, which Petitioners rejected, arguing that they were enforcing the signed agreement....

...The agreement at issue incorporates the statutory provisions with a section recognizing that “Florida Statutes, Chapter 766, governing medical malpractice claims shall apply to the parties” in all aspects except that if there is no mutual agreement to arbitrate under sections 766.106 or 766.207 at the conclusion of the pre-suit screening period, the parties will resolve any claim through the terms of the agreement....

...The agreement does not specify whether this provision applies to demands for arbitration under Florida Statutes. Therefore, patients subject to this agreement but seeking arbitration under the statutes would have to secure the “mutual agreement to arbitrate under Florida Statutes, 766.106 or 766.207” within this twenty-day window in order to escape the unfavorable terms....

...f Appeal for further proceedings consistent with this opinion. It is so ordered. LABARGA, C.J., and PARIENTE, LEWIS, and PERRY, JJ., concur. PARIENTE, J., concurs with an opinion. CANADY, J., dissents with an opinion, in which POLSTON, J., concurs. .§ 766.207(2), Fla....

...Making an offer to arbitrate in which liability is deemed admitted and arbitration will be held only on the issue of damages."). See also Bowers, 116 So.3d at 1248 (“[T]he agreement dispenses with the inherent concession of liability provided by section 766.207.”); Echarte, 618 So.2d at 194 ("The claimant benefits from the requirement that a defendant quickly determine the merit of any defenses and the extent of its liability....

...ability.”); St. Mary's Hosp., Inc. v. Phillipe, 769 So.2d 961, 970 (Fla. 2000) ("[T]he most significant incentive for defendants to concede liability and submit the issue of damages to arbitration is the $250,000 cap on noneconomic damages.”). . § 766.207(4)-(5), Fla. Stat. (1996). . § 766.207(7)(f)-(g), Fla. Stat. (2003). . § 766.207(7)(e), Fla. Stat. . § 766,207(7)(h), Fla. Stat. . § 766.212(1), Fla. Stat, (1988). . § 766.207, Fla. Stat. See also Bowers, 116 So.3d at 1248 ; Phillipe, 769 So.2d at 970 . . § 766.207(4)—(5), Fla. Stat . § 766. 207(7)(f)-(g), Fla. Stat. . § 766.207(7)(e), Fla. Stat. . § 766.207(7)(h), Fla....

...sively through statutory voluntary binding arbitration or by trial. Lifetime contends that the Act sweeps less broadly. We agree. Ms. Santiago and Mr. Ocasio never requested voluntary statutory arbitration, thus they never invoked the protections of section 766.207, which provides, in part, as follows: (2) Upon the completion of presuit investigation with preliminary reasonable grounds for a medical negligence claim *571 intact, the parties may elect to have damages determined by an arbitration panel....

...We find nothing in the record suggesting that the agreement is procedurally or substantively unconscionable. The agreement clearly specifies that the parties waive the right to a jury trial and consent to arbitrate all claims arising out of or related to medical care and treatment. Unlike the provisions of section 766.207, the agreement provides that the parties shall share the arbitration expenses equally. Ms. Santiago and Mr. Ocasio insist that Franks v. Bowers, 116 So.3d 1240 (Fla. 2013), compels reversal. They read Bowers broadly to hold that if neither party seeks arbitration under section 766.207, the malpractice claim cannot be arbitrated at all....

...imant," rather than "per bodily injured person." In support of this argument, the appellants rely on St. Mary's Hospital v. Phillipe, 769 So.2d 961 (Fla.2000), in which the Florida Supreme Court interpreted the $250,000.00 noneconomic damages cap in section 766.207(7)(b), Florida Statutes (2004), one of the arbitration provisions of the Medical Malpractice Act, to apply separately to each wrongful death beneficiary, rather than in the aggregate to all claimants. However, section 766.207(7)(b) uses different language and serves a different purpose than section 324.021(9)(b), and the two sections are distinguishable. One distinguishing factor is that section 766.207(7)(b) contains an ambiguity not present in section 324.021(9)(b), as it provides for a $250,000.00 maximum per incident, but then describes how damages are to be calculated by referring to a claimant, who is defined as any person who has a cause of action arising from medical negligence. St. Mary's, 769 So.2d at 967-68. Another distinguishing factor is that section 766.207(7)(b), regarding medical malpractice, limits the recovery of noneconomic damages from directly liable defendants while section 324.021(9)(b), regarding the liability of motor vehicle owners, limits the recovery of noneconomic damages from vicariously liable defendants....

...as there is no cap on the negligent driver's direct liability. Enterprise Leasing, 833 So.2d at 838. Thus, the limitation of section 324.021(9)(b) is effectively not an absolute bar to recovery beyond *352 the amount of the cap, as the limitation of section 766.207(7)(b) is an absolute bar, because even if a plaintiff cannot recover against a motor vehicle owner, he or she can still recover against the driver....

...process rights, the single subject requirement, the taking clause, or the non- delegation doctrine.”). The statutes at issue in Echarte capped noneconomic damages in medical malpractice cases at $250,000 if the parties agreed to arbitrate. Id. at 193 (describing section 766.207(7), Fla....

...about the noneconomic damages caps that had previously passed constitutional muster in Echarte. See St. Mary’s Hosp. v. Phillipe, 769 So. 2d 961 (Fla. 2000). - 68 - In Phillipe, this Court held that the noneconomic damages caps under section 766.207 applied to claimants individually rather than on a per incident basis. 769 So. 2d at 972. In reaching this holding, this Court first concluded that “section 766.207(7)(b) is neither clear nor unambiguous.” Id....

...Then, this Court found that the Legislature’s intent with the statute was to “provide substantial incentives to claimants and defendants to voluntarily submit their cases to binding arbitration” and that this intent “can be obtained by interpreting section 766.207(7)(b) so that each claimant is fairly and reasonably compensated for his or her pain and suffering.” Id....

...FACTS Evelyn Barlow brought suit against North Okaloosa Medical Center ("NOMC") for medical malpractice as the result of the death of her husband. NOMC admitted liability and the parties chose to proceed under the alternative arbitration procedure for medical malpractice claims set forth in section 766.207, Florida Statutes (2002)....

...Barlow] failed to establish that there would exist any net accumulation after consumption. Stated differently, [Mrs. Barlow] failed to demonstrate that the social security benefits did not fairly represent the monies that would have been required to maintain the decedent. Notably, Section 766.207(7)(a), Florida Statutes, calls for an award of "net economic damages," and there is no apparent reason to conclude that established *657 principles used to calculate net economic damages should not apply to this case....

...presuit investigation process to eliminate frivolous claims and (2) a voluntary arbitration process to encourage settlement of claims." University of Miami v. Echarte, 618 So.2d 189, 192 (Fla.1993). With respect to the voluntary arbitration process, section 766.207(7) provides that a claimant who submits to arbitration on the amount of damages can recover, in part, [n]et economic damages ... including, but not limited to, past and future medical expenses and 80 percent of wage loss *658 and loss of earning capacity, offset by any collateral source payments. § 766.207(7)(a), Fla....

...cify the damages available when the parties agree to binding arbitration, regardless of whether the medical malpractice action involves a wrongful death. See 769 So.2d at 973. Specifically, we concluded: The plain language of sections 766.202(3) and 766.207(7)(a) indicates that the full range of economic damages is available to claimants as an incentive to forego a jury trial on damages and proceed to arbitration....

...e of the Medical Malpractice Act in determining the damages available to a claimant who agrees to proceed with binding arbitration as provided for under that Act. Nonetheless, NOMC asserts that because only net economic damages are recoverable under section 766.207(7)(a), the loss of $5000 in social security retirement benefits should be reduced to achieve a "net" amount and, therefore, looking to the definition of "net accumulations" in the Wrongful Death Act for guidance is appropriate....

...We disagree. The Legislature expressly provided that economic damages awarded as a result of medical malpractice arbitration are to be reduced in only two ways. First, a claimant is entitled to only 80 percent of wage loss and loss of earning capacity. See § 766.207(7)(a). Second, economic damages are to be offset by payments from those collateral sources expressly defined in section 766.202(2). See §§ 766.202(2), 766.207(7)(a)....

...economic damages, which include net "financial losses which would not have occurred but for the injury giving rise to the cause of action. " § 766.202(3) (emphasis supplied). We recognize that during a 2003 special session, the Legislature amended section 766.207(7) to specify that "damages shall be awarded as provided by general law, including the Wrongful Death Act," see ch.2003-416, § 62, at 4107, Laws of Fla., and amended the definitions of "economic damages" and "noneconomic damages" as used in section 766.207(7), adding the phrase "to the extent the claimant is entitled to recover such damages under general law, including the Wrongful Death Act." Id....

...lt of this Court's decisions in St. Mary's Hospital or Chester. *660 Because the amount of the social security benefit Mr. Barlow would have consumed had he lived is not an authorized deduction in determining Mrs. Barlow's net economic damages under section 766.207, Florida Statutes (2002), we conclude that the First District erred in relying on the concept of net accumulations defined in the Wrongful Death Act when reviewing the economic damages awarded by the arbitration panel....

...First, the majority's decision to award Mrs. Barlow the full amount of the decrease in social security benefits effectively reads the word "net" out of the statute. Second, I believe the damages available in voluntary arbitration under sections 766.209(4)(a) and 766.207(7) of the Medical Malpractice Act should be interpreted in conjunction with the Wrongful Death Act and made consistent with the damages available under sections 766.209(2) and 766.209(3)(a). [4] I. THE DEFINITION OF "NET" Section 766.207(7)(a), Florida Statutes, provides for an award of "net economic damages." Economic damages are defined in section 766.202(3)....

...mages under the Act. The logical consequence of this ambiguity and this Court's decision in St. Mary's Hospital is that without the ability to resort to the Wrongful Death Act for guidance, damage awards in wrongful death actions brought pursuant to section 766.207 have been arbitrary and inconsistent with the Wrongful Death Act. See Chester v. Doig, 842 So.2d 106 (Fla.2003); St. Mary's Hosp.; Barlow. [6] In a 2003 special session, the Legislature corrected this inconsistency by amending section 766.207(7) to specifically require arbitrators to look to the Wrongful Death Act when awarding damages....

...change thereof); Gay v. Canada Dry Bottling Co., 59 So.2d 788, 790 (Fla.1952) ("The court has the right and the duty, in arriving at the correct meaning of a prior statute, to consider subsequent legislation."). In this case, the 2003 amendments to section 766.207(7) are supportive of a holding contrary to St....

...he Task Force had established that the medical malpractice crisis could be alleviated by enacting reforms. See ch. 2003-416, § 1(8) — (10), at 4035, Laws of Fla. That Task Force expressly recommended that the Legislature amend sections 766.202 and 766.207 to specifically state that "damages are recoverable in voluntary binding arbitration only if the claimant has the right to recover such damages under general law, including the Wrongful Death Act." Governor's Select Task Force on Healthcare Professional Liability Insurance 300 (2003). And the Legislature followed this recommendation by so amending sections 766.202 and 766.207....

...Mary's decision was not a correct interpretation of the intent of the original legislation. For the above reasons, in order to resolve the ambiguities contained in the Medical Malpractice Act that are at issue in this case and to avoid disparate treatment of wrongful death claims brought pursuant to section 766.207, I believe the Medical Malpractice Act is best interpreted in conjunction with the Wrongful Death Act....

...ty. We decline to address this claim, which is beyond the scope of the conflict issue. See Kelly v. Comty. Hosp. of Palm Beaches, Inc., 818 So.2d 469, 470 n. 1 (Fla.2002). [4] As the majority notes on page 8 of their opinion, the Legislature amended section 766.207(7) during a 2003 special session....

...ges not to exceed $350,000 per incident. See § 766.209(4)(a) Fla. Stat. 4. If both the defendant and the plaintiff agree to arbitration, the case is arbitrated and damages are limited to net economic damages and noneconomic damages of $250,000. See § 766.207(7) In scenarios one and two, the claim proceeds to trial and damages are awarded and divided among survivors, spouses, and the estate pursuant to the Wrongful Death Act....

...Finding that the order on review departs from the essential requirements of law and will cause material harm that cannot be adequately remedied by appeal, we grant relief and quash the order. FACTUAL AND PROCEDURAL BACKGROUND This matter arises from a binding arbitration proceeding pursuant to section 766.207, Florida Statutes (2003)....

...1st DCA 2007) (affirming per curiam an order of the circuit court requiring arbitration of this matter). In the arbitration proceeding, damages only, and not liability, are at issue before the assigned administrative law judge of the Florida Division of Administrative hearings. See § 766.207(7)(h), Fla....

...Although the administrative law judge observed correctly that life expectancy would be an issue in the arbitration, the same could be said of almost any wrongful death action because the trial court must generally consider the life expectancy of the decedent. See §§ 766.207(7), 768.21(1), Fla....

...Florida Statutes (2002). On June 24, 2003, Dr. Olivares sent a written rejection of the claim by facsimile. That same day, Toca forwarded an offer to submit her claims to voluntary binding arbitration pursuant to the explicit terms and conditions of section 766.207, Florida Statutes (2003)....

...01iT vares’ counsel responded to this offer by letter dated July 1, 2003, stating that “we are presently discussing your offer,” and requesting the details of the arbitration. Toca responded by forwarding the relevant statutory provisions concerning voluntary arbitration pursuant to section 766.207. Toca’s attorney stated in that letter, “[s]o we are clear, this arbitration procedure involves damages only.” On July 24, 2003, Dr. Olivares sent an acceptance of the offer to arbitrate. Section 766.207, Florida Statutes (2003), provides as follows: (2) Upon the completion of presuit investigation with preliminary reasonable grounds for a medical negligence claim intact, the parties may elect to have damages determined by an arbitration panel....

...Such acceptance within the time period provided by this subsection shall be a binding commitment to comply with the decision of the arbitration panel. The liability of any insurer shall be subject to any applicable insurance policy limits. It is clear that the statutory scheme of section 766.207(2) envisions a case where liability is not contested and the parties wish to arbitrate the damages. It is equally clear that, by denying the claim, Dr. Olivares was not admitting liability. Toca has cited to us no authority to support the argument that, by agreeing to arbitrate under section 766.207, Dr....

...Oli-vares was admitting liability, particularly in this context where she had clearly and unequivocally denied liability. Specifically, the trial court properly held that no valid written agreement to arbitrate existed between the parties, due to an ambiguity in Toca’s offer to arbitrate. Toca’s offer to arbitrate under section 766.207 was ambiguous because it was preceded by Dr....

...s. Russell and Sheinman. After receiving notice of claim, both treating doctors and the claimant agreed to submit to voluntary binding arbitration. This limited the doctors’ liability for non-economic damages to a maximum of $250,000 per incident. § 766.207(7)(b), Fla....

...First, Parkway contends that the trial court erred by refusing to apply the $250,000 statutory cap on non-economic damages because its vicarious liability stemmed solely from the actions of a tort-feasor that was allowed to assert this cap. We disagree. Section 766.207(7)(b) provides: (7) Arbitration pursuant to this section shall preclude recourse to any other remedy by the claimant against any other participating defendant, and shall be undertaken with the understanding that: [[Image here]] (b) No...

...amages. This limitation provides liability insurers with the ability to improve the predictability of the outcome of claims for the purpose of loss planning in risk assessment for premium purposes. This predictability can be obtained by interpreting section 766.207(7)(b) so that each claimant is fairly and reasonably compensated for his or her pain and suffering....

award, which is the maximum allowed under section 766.207(7)©, Florida Statutes (1993). We disagree.

per incident in a voluntary arbitration under § 766.207 apply to each beneficiary under the Wrongful Death

...The Moglers mailed a notice of intent to initiate a malpractice action to Dr. Franzen and his P.A. Dr. Franzen’s insurer responded and offered to admit liability under section 766.106(3)(b)3, Florida Statutes (1993), and to submit the issue of damages to voluntary binding arbitration under section 766.207, Florida Statutes (1993)....

decided that, while most of the provisions of section 766.207 would be followed, some very important provisions

...economic damages shall be limited to a maximum of $250,000 per incident” — limits the aggregate recovery of all claimants with respect to a single incident or the individual recovery of each claimant. 769 So.2d at 967 (emphasis omitted) (quoting § 766.207(7)(b), Fla....

requested voluntary binding arbitration under section 766.207, Florida Statutes (2020). The defendant ultimately

...We will not describe each of the Personal Representative's arguments in detail, but several warrant discussion. *925 The Personal Representative makes an interesting argument. To understand this issue, it is critical to understand the interplay between section 766.209 and section 766.207. Section 766.207 establishes voluntary binding arbitration of medical negligence claims....

...At first glance, section 766.209 appears to create sanctions for the failure of a litigant to cooperate with the other party by engaging in binding arbitration. This is not actually its effect. The damages awardable in a medical negligence arbitration proceeding under section 766.207 are even more restricted than the damages awardable under section 766.209. If the parties proceed to binding arbitration, noneconomic damages are capped at $250,000 and punitive damages are unavailable. See § 766.207(7)(b), (d)....

...xpress finding of an "overpowering public necessity." Id. at 4. In the case of section 766.209, the legislature justified the limitation it placed on the common law by creating, as a "reasonable alternative" to jury trial, the binding arbitration in 766.207, but this "reasonable alternative" provides an even more limited remedy than the cap in section 766.209(4)....

...an overpowering public necessity. The Personal Representative believes it could establish that the crisis no longer exists if a forum existed for that presentation. [5] Finally, the $350,000 limitation in this statute and the $250,000 limitation in section 766.207(7)(b) were both established in *926 1988 and have never been increased....

...Arbitration shall provide: 1. Substantial incentives for both claimants and defendants to submit their cases to binding arbitration, thus reducing attorney’s fees, litigation costs, and delay. § 766.201(2)(b), Fla. Stat. (2020). Section 766.207(7)(k) provides that “[a] defendant who rejects a claimant’s offer to arbitrate shall be subject to the provisions of s. 766.209(3).” § 766.207(7)(k), Fla....

...Greber’s acceptance to arbitration should we be unsuccessful in resolving the matter at mediation.” The parties’ attorneys then took great pains to clarify expressly that the arbitration contemplated to occur in the event of an unsuccessful mediation would be an arbitration conducted pursuant to section 766.207 of the Florida Statutes. Petitioners’ counsel’s October 17, 2014 letter, for instance, provides: “[O]ur September 5, 2014 Letter was referring to arbitration pursuant to Section 766.207, Florida Statutes.” Section 766.207 provides a mechanism for parties to submit their medical negligence claims to binding arbitration. § 766.207, Fla. Stat. (2013). An arbitration conducted pursuant to section 766.207 “envisions a case where liability is not contested and the parties wish to arbitrate the damages.” Toca v. Olivares, 882 So. 2d 465, 466 (Fla. 3d DCA 2004). Section 766.207(7) places significant 3 limitations on the damages that an arbitration panel may award. § 766.207(7)(a)- (d) (2013).1 After the parties unsuccessfully mediated the dispute in February of 2015, Respondents2 invoked section 766.207 of the Florida Statutes and sent Petitioners’ counsel a proposed joint Request for Arbitration for execution and submission to the Florida Department of Administrative Hearings.3 Neither Meridian nor Dr. DeMeo replied to Respondents’ arbitration request, and in June of 2015, Respondents filed the instant complaint in the circuit court seeking to compel arbitration. In December of 2015, Petitioners filed a motion to dismiss Respondents’ lawsuit with prejudice, alleging that section 766.207 expressly requires presuit investigation and notice as a condition precedent to invoking the statute’s voluntary arbitration process.4 Petitioners argued that, because the two-year statute 1 For example, noneconomic damages are capped at $250,000, punitive damages are not recoverable, and attorney’s fees are capped at fifteen percent of any award. § 766.207(7)(b),(d) and (f), Fla. Stat. (2013). 2 Mr. Greber asserts a loss of consortium claim related to the injury allegedly sustained by his wife. 3 Section 766.207(4) governs the composition of the arbitration panel and provides for an administrative law judge, furnished by DOAH, to serve as the chief arbitrator. 4Section 766.203 describes the parties’ respective responsibilities of presuit notice and investigation....

...Analysis5 The record is clear that the parties contractually agreed to have any medical negligence claims arbitrated rather than litigated. The record also is clear that the parties agreed that the arbitration would be conducted pursuant to section 766.207 of the Florida Statutes....

...Certiorari jurisdiction may lie, however, when chapter 766 presuit requirements are at issue. Fassy v. Crowley, 884 So. 2d 359, 363 (Fla. 2d DCA 2004). 5 precedent to a medical negligence claim arbitration conducted pursuant to section 766.207. The parties make the same arguments here that they made below. Petitioners argue that the plain language of section 766.207 expressly contemplates that presuit notice and investigation are required by section 766.207. Section 766.207(2) provides: “Upon the completion of presuit investigation with preliminary reasonable grounds for a medical negligence claim intact, the parties may elect to have damages determined by an arbitration panel.” (emphasis added) Petitioners further assert that nothing in section 766.207 provides an explicit exception to the presuit notice and investigation requirement. Respondents assert that the parties’ September-October 2014 correspondence discussing the arbitration clearly implied that presuit notice and investigation would be unnecessary, and that any such condition precedent to a section 766.207 arbitration was waived....

...t. See Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337, 1339 (Fla. 3d DCA 1979). 6 Respondents further assert that, because a defendant’s liability is admitted in an arbitration proceeding under section 766.207,6 Petitioners’ unqualified, express agreement that any arbitration be conducted pursuant to 766.207 obviated any presuit notice and investigation. We agree with the Respondents’ assertion that, under the distinctive facts of this case, Petitioners’ express insistence on arbitrating Respondents’ claims pursuant to section 766.207 – after Petitioners were made aware of those claims – necessarily waived and obviated the otherwise applicable presuit notice and investigation requirements. While the language of section 766.207(2) references “completion of presuit investigation[,]” the provision goes on to state that the purpose of a presuit investigation is to ensure that “preliminary reasonable grounds for a medical negligence claim [are] intact.” § 766.207(2), Fla....

...damages, subject to the statute’s significant damages limitations. In this case, the parties’ correspondence fulfilled the purpose of the presuit investigation. The 6Deno v. Lifemark Hosp. of Fla., Inc., 45 So. 3d 959, 960 (Fla. 3d DCA 2010) (“In a proceeding under section 766.207, the liability of the defendants is admitted....

...The only issue is damages. Those are set by a panel of three arbitrators . . . .”). 7 parties plainly, unequivocally and expressly agreed that, if mediation proved unsuccessful, then arbitration would ensue pursuant to section 766.207....

may mutually agree to binding arbitration. See § 766.207, Fla. Stat. (2003). If the parties do not agree

binding medical malpractice arbitration proceeding. § 766.207, Fla. Stat. An arbitration award under this section

...tiff accepted the offer as clarified. Prior to arbitration, a dispute arose regarding the interpretation of the parties' agreement. The defendants contended that the parties' agreement to arbitrate was subject to the damages limitations set forth in section 766.207, Florida Statutes (2004)....

...These amendments simplified the voluntary arbitration provisions of chapter 766. See Thomas D. Sawaya, Personal Injury and Wrongful Death Actions § 12.11 (2008). The plaintiff acknowledges that the Legislature may have intended to make all of chapter 766 subject to the statutory limitation on damages found in section 766.207....

...tes. We need not reach the plaintiffs statutory interpretation argument. In this case the defendants clarified (prior to the plaintiffs acceptance) that their "offer to arbitrate was for voluntary binding arbitration as set forth under Chapter 766." Section 766.207 is part of chapter 766 and prescribes liability limitations....

...As set forth in the defendants' clarification, their offer was subject to the provisions of chapter 766, which includes the statutory damages limitations. It follows that the trial court erred in compelling arbitration under section 44.104, Florida Statutes, and in ruling that section 766.207, Florida Statutes is inapplicable. The arbitration shall proceed under chapter 766, Florida Statutes, including section 766.207....

...The issue before this Court is whether the arbitration award should be set off (reduced) by the settlement award. DISCUSSION The arbitration provisions of Florida’s Medical Malpractice Act allow an arbitration panel to determine damages in a medical malpractice claim once presuit investigation has been completed. See §§ 766.207-766.212, Fla....

...efendants to submit their cases to binding arbitration, thus reducing attorneys’ fees, litigation costs, and delay.” § 766.201(2)(b), Fla. Stat. (1997). In this case, Chester agreed to submit to binding *108 arbitration with Dr. Doig, and under section 766.207(7), the following limitations on damages apply: (7) Arbitration pursuant to this section shall preclude recourse to any other remedy by the claimant against any participating defendant, and shall be undertaken with the understanding t...

...766.202(8) and shall be offset by future collateral source payments. (d)Punitive damages shall not be awarded. [[Image here]] (h) Each defendant who submits to arbitration under this section shall be jointly and severally liable for all damages assessed pursuant to this section. § 766.207(7), Fla. Stat. (1997). Chester argues the plain language of section 766.207 prohibits a setoff of the settlement award, while Dr....

...award because there was no allocation of fault and Dr. Doig is jointly and severally liable for all noneconomic damages found by the arbitration panel. See Doig, 776 So.2d at 1047 . The Fifth District noted that the arbitration panel determined that section 766.207(7) did not specifically permit a set-off for settlements and therefore the panel refused to consider Florida’s setoff statutes....

...ments of damages available in a medical malpractice arbitration, it could have specifically provided for the application of that Act in the Medical Malpractice Act.” Id. We reach the same conclusion in the instant case with respect to setoff. *109 Section 766.207(7)(a) provides that net economic damages be offset by any collateral source payments, while section 766.207(7)(c) provides that damages for future economic losses be offset by future collateral source payments....

...tal, or other health care services. (d) Any contractual or voluntary wage continuation plan provided by employers or by any other system intended to provide wages during a period of disability. § 766.202(2), Fla. Stat. (1997). The plain language of section 766.207(7)(a) and (c) clearly provides that the only setoff available in a medical malpractice arbitration is for collateral sources as defined by section 766.202(2)....

...We also note, reading further into the statutory scheme, that section 766.208(6), Florida Statutes (1997), provides: Arbitration to allocate responsibility among multiple defendants.— [[Image here]] (6) Any defendant paying damages assessed pursuant to this section or s. 766.207 shall have an action for contribution against any nonarbitrating person whose negligence contributed to the injury- Therefore, because Dr. Doig is paying damages assessed pursuant to section 766.207, he may have an action for contribution against any nonarbitrating party whose negligence contributed to the injury....

...ysical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life, and other nonfinancial losses. . Florida currently has three statutes governing setoff and contribution. See §§ 46.015, 768.31, 768.041, Fla. Stat. (2000). . Section 766.207(7)(b) requires a $250,000 cap on noneconomic damages per incident, but does not require any type of setoff from the noneconomic damages portion of an arbitration award in a medical malpractice arbitration....

...We find this reasoning persuasive, and not in conflict with St. Mary's Hospital, Inc. v. Phillipe, 769 So.2d 961 (Fla.2000). In St. Mary’s, the court held that each claimant could receive up to the $250,000 statutory cap on non-economie damages per incident in a voluntary arbitration under section 766.207, Florida Statutes....

...By citation of Bombalier in St. Mary’s, the supreme court acknowledged that a “claimant” included more than the patient who was directly injured by the act of malpractice. St. Mary’s is inapposite, however, because the purpose of the cap requirements in section 766.207 differs from the pre-suit notice requirements of section 766.203(2)....

...Chester settled with Halifax for $150,000 during presuit proceedings and then arbitrated with Doig and recovered $507,321; $250,000 of this award was for non-economic damages. The issue is whether the Halifax recovery should be offset against the Doig award and, if so, to what extent. Chester suggests that we should construe section 766.207(7)(b), Fla.Stat., as permitting the arbitration panel to consider a non-economic damages award greater than $250,000 for the purpose of applying an offset or, at least, we should apply the formula for deciding the offset approved in Wells v....

...By making the noneconomic damage award, as well as the economic damage award, joint and several in the context of an arbitration proceeding, the statute makes it clear that this cap applies to multiple defendants involved in the "incident" if they are included in the arbitration proceeding. See section 766.207(7)(h), Florida Statutes....

...party seeks arbitration, then the action proceeds as any civil lawsuit limited only by the jury verdict on non-economic damages. See Section 766.209(2). If both parties agree to arbitration, there is a limit of $250,000 for non-economic damages. See Section 766.207(7)(b)....

...The hospital also argues that the trial court erred in awarding attorney's fees under section 766.209, Florida Statutes, which provides for voluntary binding arbitration, and the recovery of attorney's fees by claimant where a defendant refuses a claimant's offer to arbitrate and the claimant prevails at trial. Section 766.207(2) requires that the claimant serve a request for voluntary binding arbitration within ninety days after service of claimant's notice of intent to initiate litigation....

...Service, as we know from rule 1.080(b), is "complete upon mailing." And it is obvious that the legislature understands the difference between service and receipt because in the very same statute the legislature used the word "receipt" to start the *643 thirty-day period for accepting the offer of voluntary arbitration. § 766.207(3)....

BENTON, J. This is an appeal of an arbitration award entered pursuant to section 766.207, Florida Statutes (2001)....

...n expert testimony in determining the extent of damages. We find no impropriety. The Medical Center’s offer to arbitrate resolved the question of liability and placed on Mrs. Barlow the burden to prove the amount of any damages at arbitration. See § 766.207(2), Fla....

...Barlow receives approximately $5,000 less than she and her husband would be receiving if he were still alive. The Medical Center argues that social security benefits (of whatever nature) ought not be considered in computing economic damages, except as collateral sources which offset net economic damages, in accordance with section 766.207(7)(a), Florida Statutes (2001)....

...that there would exist any net accumulation after consumption. Stated differently, Claimants failed to demonstrate that the social security benefits did not fairly represent the monies that would have been required to maintain the decedent. Notably, Section 766.207(7)(a), Florida Statutes, calls for an award of “net economic damages,” and there is no apparent reason to conclude that established principles used to calculate net economic damages should not apply to this case....

rejected a valid offer to arbitrate pursuant to section 766.207, Florida Statutes. Platman argued that the

...This offer may be made contingent upon a limit of general damages. 2 On July 7, 2005 [prior to FPIC’s tender of policy limits], Mr. Johnson sent an email to Mr. Roberts and to Fred Tromberg, Dr. Samiian’s personal attorney, addressing whether to offer binding arbitration pursuant to section 766.207, Florida Statutes (2003)....

...(appellees) for damages under section 766.106 et seq., and sections 766.201-.212, Florida Statutes (1997). Appellants sought the maximum amount of $250,000 in non-economic damages for their son, and they also alleged entitlement to non-economic damages of $250,000 for each of them. Pursuant to section 766.207, Florida Statutes, the arbitration panel awarded total damages on behalf of Kevin Walker-White, Jr. of $1,529,545, and of this amount $180,000 were non-economic damages pursuant to section 766.207(7)(b), Florida Statutes....

...4th DCA 1997), approved in part, quashed in part, - So.2d -, 2000 WL 854258 (Fla.2000), this court certified the following question to the supreme court: When the alleged medical negligence results in the death of the patient, does the cap on non-economic damages of $250,000 *898 per incident in voluntary arbitration under § 766.207 apply to each beneficiary under the Wrongful Death Act, or does the $250,000 cap apply in the aggregate to include all Wrongful Death Act beneficiaries?

...that their medical negligence caused the death of Belzi’s twenty-four-year- old wife, Patricia, when she was eight months pregnant with their child, Abigail, who survived. After presuit investigation by the Hospital, the parties agreed to voluntary binding arbitration pursuant to section 766.207, Florida Statutes (2014) et seq., to determine damages....

...not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity, offset by any collateral source payments. (b) Noneconomic damages shall be limited to a maximum of $250,000 per incident . . . . § 766.207(7), Fla. Stat. (2014). Our supreme court has interpreted section 766.207(7)(b) as permitting the $250,000 limit on non-economic damages to apply to each claimant....

....28 4 From this award, the Hospital appeals. I. Standard of Review The parties dispute the standard of review for arbitration awards. The Hospital contends that an arbitration award under section 766.207, Florida Statutes (2014), constitutes final agency action, and any appeal is governed by section 120.68, as provided in section 766.212(1), Florida Statutes (2014)....

...Whether such damages are economic or non-economic is a question of the proper application of the statute, which we review de novo. § 120.68(7)(d), Fla. Stat. The Florida Legislature amended the Medical Malpractice Act in 2003 to limit the damages recoverable in medical negligence wrongful death arbitration. § 766.207(7)(b), Fla....

.... . . . The supreme court and other courts have also categorized companionship and guidance as non-economic damages. In St. Mary’s, the supreme court was asked to determine whether the $250,000 limit per incident on non-economic damages under section 766.207 limited the recovery for all claimants to $250,000 or limited each claimant’s recovery to $250,000....

...Any change in that amount must come from the Legislature. We therefore hold that loss of companionship and protection for the spouse and loss of parental companionship and guidance for a child are non-economic damages. As such, they fall within the statutory limitation on non-economic damages. See § 766.207(d), Fla....

...1st DCA 1985) (“It is the hearing officer’s function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence.”) III. Attorney’s Fees. Section 766.207(7)(f), Florida Statutes (2014), governs attorneys’ fees in arbitration proceedings and states that “[t]he defendant shall pay the claimant’s reasonable attorney’s fees and costs, as determined by the arbitration panel, but in...