Florida/Georgia Personal Injury & Workers Compensation

...Any offer by a defendant to arbitrate must be made to each claimant who has joined in the notice of intent to initiate litigation, as provided in s. 766.106. A defendant who rejects a claimant's offer to arbitrate shall be subject to the provisions of s. 766.209(3). A claimant who rejects a defendants offer to arbitrate shall be subject to the provisions of s. 766.209(4)....

...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....

...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....

...omic 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." This economic damages provision is replicated under section 766.209, which applies when a claimant rejects an offer to arbitrate....

...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....

...[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....

...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. 1988), applies; and if a claimant rejects a defendant's offer to arbitrate, then section 766.209(4), Florida Statutes (Supp. 1988) applies. Section 766.209(3) provides that if the defendant refuses arbitration, the claimant proceeds to trial without any limitation on damages and is entitled to receive reasonable attorney's fees up to twenty-five percent of the award. Section 766.209(4) provides that if a claimant refuses a defendant's offer to arbitrate, then a claimant proceeds to trial; however, noneconomic damages are capped at $350,000 per incident....

...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....

...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....

...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. § 766.209(4)(a)....

...ice action rather than have this issue go to trial. Fla.Stat.Ann. § 766.206 (West 1993). If the potential plaintiff refuses to arbitrate, then their recovery for noneconomic damages at trial is capped at $350,000 per incident of malpractice. Id. at § 766.209....

...In 2005, Raphael filed a negligence action against Dr. Shecter, Dr. Shecter's employer, and the hospital. The appellant died following an unsuccessful heart transplant in 2006. At the time of the incident, this medical malpractice action was governed by section 766.209(2), Florida Statutes (2002), which stated that "[i]f neither party requests or agrees to voluntary binding arbitration, the claim shall proceed to trial or to any available legal alternative such as offer of and demand for judgment under s. 768.79 or offer of settlement under s. 45.061." The statute went on to further state that the claim shall proceed to trial "without limitations on damages" if the defendant refuses a claimant's offer of voluntary binding arbitration under section 766.209(3) and the limitation of non-economic damages would be set at $350,000 if the claimant rejects the defendant's offer to enter voluntary binding arbitration pursuant to section 766.209(4). In this case, neither party offered to arbitrate, so section 766.209(2) would have applied....

...We, therefore, reverse and remand for further proceedings consistent with this opinion. As a result, we do not address the other issues raised by appellant. [6] We have also considered the issues raised in the cross appeal and find both to be without merit. Reversed and remanded. STEVENSON and MAY, JJ., concur. NOTES [1] Section 766.209, Florida Statutes (2002), provided as follows: (1) A proceeding for voluntary binding arbitration is an alternative to jury trial and shall not supersede the right of any party to a jury trial....

...It is not tied to the liquidation of damages. Rather, it is designed to encourage prompt resolution of medical malpractice claims. § 766.206(1) (2001); St. Mary's Hosp., Inc. v. Phillipe, 769 So.2d 961, 970 (Fla.2000). Prejudgment interest is awarded under section 766.209, Florida Statutes, "[i]f the defendant refuses a claimant's offer of voluntary arbitration." As such, we distinguish prejudgment interest under section 766.209 from that traditionally imposed on liquidated damages under Argonaut....

...and the interest on that part of any judgment that does not exceed the applicable Limits of Liability." The insurer did not restrict the term "interest" to "pre" or "post" judgment. The policy makes no specific reference to prejudgment interest under section 766.209....

...andated legislatively specified factors. This differs from the fee provision considered in Rowe which, perhaps in part because of Rowe, was repealed and a new attorney's fee provision substituted which has adopted the offer of judgment standard. See § 766.209(2), Fla....

...If a claimant rejects a medical provider's offer to enter voluntary binding arbitration, the only damages awardable at trial are limited to net economic damages and noneconomic damages are absolutely capped not to exceed $350,000 per incident. See § 766.209, Fla....

...lpractice, despite the fact that such incident may have generated multiple claims, i.e., a wrongful death claim and a bodily injury claim... . The Bombaliers' claims are subject to the $350,000 "per incident" cap on non-economic damages contained in section 766.209(4)(a), Florida Statutes (1993)....

...The damages recoverable at trial shall be limited to net economic damages, *852 plus noneconomic damages not to exceed $350,000 for all claims since the Bombaliers' claims arose out of one "incident" of alleged malpractice, even though the incident gave rise to separate claims. Fla. Stat. § 766.209(4)(a)....

...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... . A claimant who rejects a defendant's offer to arbitrate shall be subject to the provisions of s. 766.209(4)." (emphasis added)....

...has joined in the notice of intent to initiate litigation. Additionally, "a claimant," meaning a single claimant, who rejects a defendant's offer to arbitrate, is limited in the amount of damages he or she may recover at trial by statute. Similarly, section 766.209(4)(a), Florida Statutes (1993), provides that, "If the claimant rejects a defendant's offer to enter voluntary binding arbitration: The damages awardable at trial shall be limited to net economic damages, plus noneconomic damages not...

...Any offer by a defendant to arbitrate must be made to each claimant who has joined in the notice of intent to initiate litigation, as provided in s.766.106. A defendant who rejects a claimant’s offer to arbitrate shall be subject to the provisions of s.766.209(3). A claimant who rejects a defendant’s offer to arbitrate shall be subject to the provisions of s.766.209(4)....

...(c) Damages for future economic losses shall be awarded to be paid by periodic payments pursuant to s.766.202(9), and shall be offset by future collateral source payments. (5) Jury trial shall proceed in accordance with existing principles of law. § 766.209, Fla....

...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. See § 766.209, Fla....

...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....

...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 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. [15] Section 766.209 states the consequences of failure to request arbitration, as well as the effect of defendant's or claimant's refusal to accept an offer of binding arbitration. If a claimant rejects arbitration, the matter proceeds to trial and claimant's noneconomic damages are capped at $350,000. § 766.209(4), Fla....

...Upon defendant's rejection of claimant's offer to arbitrate, the trial proceeds "without limitation on damages, and the claimant, upon proving medical negligence, shall be 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....

...The benefits must inure to the medical malpractice victim. Smith. Although the legislature found that the $350,000 cap "represents an appropriate balance between the interests of all patients ... and the interests of those patients who are injured as a result of medical negligence," § 766.209(4)(a), Fla....

...[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....

...Any offer by a defendant to arbitrate must be made to each claimant who has joined in the notice of intent to initiate litigation, as provided in s. 766.106. A defendant who rejects a claimant's offer to arbitrate shall be subject to the provisions of s. 766.209(3). A claimant who rejects a defendant's offer to arbitrate shall be subject to the provisions of s. 766.209(4)....

...120.53, or s. 120.65 may authorize any reasonable sanctions except contempt for violation of the rules of the division or failure to comply with a reasonable order issued by a hearing officer, which is not under judicial review. (Notes omitted). [3] Section 766.209, Florida Statutes (Supp....

..., 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....

...at 193 (describing section 766.207(7), Fla. Stat. (Supp. 1988)). They also capped noneconomic damages at $350,000 if the plaintiff proceeded to trial after - 67 - refusing a defendant’s offer to arbitrate. Id. (describing section 766.209(4), Fla. Stat....

...ons. 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)....

...Applying the applicable provisions of the Wrongful Death Act to this case, Mrs. Barlow would be entitled to lost support and services, and her husband's estate would be entitled to Mr. Barlow's prospective net accumulations. This result makes all four scenarios for the award of damages provided for in section 766.209 consistent....

...[7] Although these amendments were passed as part of comprehensive medical malpractice reform, the only substantive changes made to the voluntary arbitration provisions are the ones requiring arbitrators to look to the Wrongful Death Act. [8] Four relevant scenarios are provided for in section 766.209, Florida Statutes: 1. If neither the claimant nor the defendant requests or agrees to voluntary binding arbitration, the claim proceeds to trial under the Wrongful Death Act. See § 766.209(2) Fla. Stat. 2. If the defendant refuses a claimant's offer of voluntary binding arbitration, the claim proceeds to trial under the Wrongful Death Act. See § 766.209(3)(a) Fla. Stat. 3. If a claimant rejects a defendant's offer to enter into voluntary binding arbitration, the case proceeds to trial but the damages are limited to net economic damages, plus noneconomic damages not to exceed $350,000 per incident. See § 766.209(4)(a) Fla....

...aim in the amount of *922 $12,000,000. As a result of posttrial motions, the trial court reduced the award to the mother from $8,000,000 to $350,000. This reduction was based on the limitation or cap of liability for noneconomic damages contained in section 766.209(4), Florida Statutes (2003)....

...The fact that the father did not choose to testify at trial did not eliminate the other evidence of his involvement with the child and his entitlement to damages. Although the jury awarded $4,000,000 to the father, on remand, we mandate that judgment be entered in favor of the father in the amount of $350,000 pursuant to section 766.209(4)....

...Assuming that such a claim is legally recognized in this context, we conclude that the evidence did not establish a claim that could be submitted to the jury. We note that the Personal Representative assumes that this theory would have been exempt from the limitation on liability under section 766.209(4)....

...nce, these issues are not matters in controversy in this appeal and will not be discussed in any detail. Following the jury's verdict, TGH filed five motions. First, it filed a motion for remittitur, seeking to enforce the limitation of liability in section 766.209(4)....

...ering. Finally, TGH filed a motion for new trial. Both parties filed extensive memoranda as to these issues. All of TGH's motions were denied except as follows: The trial court granted the motion to limit the mother's damages to $350,000 pursuant to section 766.209(4)....

...he amount from $4,000,000 to $0. Thus, the trial court entered judgment in September 2008 in favor of the Personal Representative, but limited to the $350,000 awarded to the mother as survivor. The Personal Representative appealed this judgment. II. Section 766.209(4) is Constitutional. The Personal Representative, with support from an amicus, extensively argues that section 766.209(4) is unconstitutional....

...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....

...The outcome is reached quicker and cheaper. This would appear to be a valuable tool for the claimant with a small claim, but it places great limitations on a claimant who has or will endure extensive pain and suffering. Thus, in reality, the cap in section 766.209 is not merely an "effect" of refusing arbitration; it is a cap on common law damages awarded in a trial by jury that is guaranteed in article I, section 22, of the Declaration of Rights of the Florida Constitution....

...Those guidelines require the legislature to create a "reasonable alternative" to the common law right and to justify the abolishment of a common law right without the creation of a reasonable alternative with an express 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)....

...e claim for fraud in the inducement. In so doing, we emphasize that we are not holding that such a claim was appropriate in this context or that such a claim, if appropriate, would be a method to obtain a judgment in excess of the cap established in section 766.209(4)....

...rove medical malpractice under a negligence theory, we are not entirely convinced there is a justification for creating a claim for fraud in the inducement. If the only purpose of such a claim is to obtain damages in excess of the cap established in section 766.209 or to obtain punitive damages under procedures different than those normally used in a medical negligence case, these purposes seem at *929 odds with the public policies announced by the legislature, and we question whether these purp...

...gment for $350,000 with appropriate interest. We affirm the judgment in all other respects and certify the following question of great public importance: DOES THE $350,000 LIMITATION OR CAP ON LIABILITY FOR NONECONOMIC DAMAGES ESTABLISHED IN 1988 IN SECTION 766.209(4) REMAIN CONSTITUTIONAL IN 2009, EVEN THOUGH THE AMOUNT OF THIS CAP HAS NEVER BEEN ADJUSTED TO ACCOUNT FOR INFLATION AND THE LEGISLATURE HAS NEVER BEEN REQUIRED TO RECONFIRM THE CONTINUED EXISTENCE OF THE "OVERPOWERING PUBLIC NECESSITY" THAT JUSTIFIED LIMITING ACCESS TO THE COURTS IN 1988? Affirmed in part, reversed in part, and remanded. VILLANTI and LaROSE, JJ., Concur. APPENDIX A 766.209....

...(5) Jury trial shall proceed in accordance with existing principles of law. NOTES [1] After these events, TGH did hire a full-time pediatric surgeon. [2] In this case, the parents' damages are all noneconomic. If they had sustained other "net economic damages," those damages would not have been subject to the cap. See § 766.209(4)(a). [3] Section 766.209 is titled "Effects of failure to offer or accept voluntary binding arbitration." [4] Although the statute states that this limitation is "per incident," a related statute has been interpreted to provide $250,000 per claimant per incident....

...enactment of article I, section 26, of the Florida Constitution in 2004. That provision protects plaintiffs from excessive attorneys' fees by their own attorneys in medical liability claims. We are unconvinced that it expressly overrides anything in section 766.209....

...to arbitrate with Dr. Vedere, pursuant to the voluntary binding process for medical malpractice claims established in Chapter 766 of the Florida Statutes. Dr. Vedere refused. After the verdict, the Estate sought pre-judgment interest, allowed under section 766.209....

...ation, 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. Stat. (2020). In turn, section 766.209(3)(a) provides that if a defendant refuses a claimant’s offer of voluntary binding arbitration: The claim shall proceed to trial, and the claimant, upon proving medical negligence, shall be entitled to recover damages subject to the limitations in s. 766.118, prejudgment interest, and reasonable attorney’s fees up to 25 percent of the award reduced to present value. § 766.209(3)(a), Fla. Stat. (2020). Because section 766.209(3)(a) does not state when the liability for interest commences or the damages to which it applies, Dr....

...As the incentive of arbitration is to avoid costs and delay, the predicate to the award of prejudgment interest is the rejection of the claimant’s offer of arbitration, according to the statute. Once a defendant rejects the arbitration offer, the defendant is subject to the additional costs under section 766.209(3)(a)....

...4th DCA 2002), we recognized the “long-standing principle” under Florida law that “prejudgment interest is not a penalty,” but rather “is an element of compensatory damages” that is “traditionally imposed on liquidated damages.” Id. at 843. However, we distinguished prejudgment interest under section 766.209 from traditional prejudgment interest on the basis that section 766.209 prejudgment interest “is a statutorily created incentive” that “is not tied to the liquidation of damages.” Id....

capped not to exceed $350,000 per incident. See § 766.209, Fla. Stat. (2003). If the parties proceed to

...roceeding sets three limits on the amount of claimant's recovery for non-economic damages "per incident." If neither 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). There is a $350,000 limit for non-economic damages if the claimant refuses to arbitrate and instead *1045 proceeds to trial. [1] See Section 766.209(4)(a)....

...1983) (reversing for a new trial because of no relevant evidence substantiating the reasonable value of husband's services), Rumsey v. Manning, 335 So.2d 25 (Fla. 2d DCA 1976). 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....

any time by mutual agreement of the parties. Section 766.209 contains sanctions for the party who rejects