766.207 Below will be described information regarding at-will binding arbitration in medical claims for the state of Florida:
(1) Pursuant to ss.766-208-766.212 and this section, voluntary binding does not apply to the rights of action involving agencies, subdivisions, the state, and their agents, employees, or officers in accordance with s.768.28.
(2) The election of having an arbitration panel determine the damages can be performed by the parties once the pre-suit investigation with preliminary reasonable means for a medical claim has been completed. Once the commencement of the intent to file the lawsuit has begun, 90 days within that time, a request to voluntary binding can be asked by every party involved. As stated in ss.120.57(1)(c ) and 120.569(2)(g), the standards of evidentiary for the voluntary binding arbitration for medical negligence claims must be followed.
(3) Within 30 days of having received the request for such arbitration by a party, the voluntary binding arbitration offer can be accepted by the opposing party. A response to the notice to perform an at-will arbitration does not need to come before a 90-day period preceding the filing of the intent under s.766. If an acceptance of the offer is made before the time frame given, then there will be a binding commitment that will lead to the arbitration panel. Any insurer who has applicable insurance policy limits will be subjected to liability.
(4) Within the panel of arbitrators, there will be three individuals: one of the arbitrators will be chosen by the plaintiff, the defendant will choose the other arbitrator, and the Division of Administrative Hearings will provide the appointed chief judge as the last arbitrator. The parties will decide upon the selection of the arbitrator in the case that there are various participants. The arbitrators will be assigned from the list of nominees that was provided by every party and chosen by the Division of Administrative Hearings if the parties do not reach an agreement.
(5) The arbitrator cannot be dependent on the parties, witnesses, or lawyers and cannot be any affiliate, employee, director, witness, or lawyer of either party, the plaintiff nor the defendant.
(6. The arbitrator’s rate of pay for participating in a medical negligence claim will be set by the administrative judge and the chief judge of the appropriate circuit court and cannot be less than $250 per day and no more than $750 per day, or whichever amount has been agreed to by both parties. When determining the rate of compensation of the arbitrators, the fees for delivery services and community services performed by professionals must be taken into account.
(7. Payments that the defendant is making to the plaintiff will cease after the arbitration has taken place, the general and Wrongful Death Act must be followed when these damages are being awarded, of which comprehension of those damages should be established, but is not constrained to the following:
(a) The following damages can be awarded, but are not constrained to them: prior and future medical fees, the lost capacity to earn, and a total of 80% of wages that were lost, which will be balanced by the collateral source payments that were made. These are known as economic damages.
(b) With respect to the capacity of enjoyment of life, calculations will be made; $250,000 is the maximum limited per incident for non-economic damages. For example, if it is found that the plaintiff’s injuries totaled a 50% reduction in their ability to enjoy life, then they would receive a compensation of no more than $125,000 in damages.
(c ) In accordance to s.766.202(9), periodic payments shall be set be for awarded damages of future economic losses, and future collateral payments shall offset it.
(d) Awarding punitive damages will not occur.
(e ) All accrued damages that would have been awarded interest at trial, shall be paid by the defendant.
(f) The panel of arbitrators will determine the costs and fees associated with the attorney, of which 15% of the award of present value shall not surpass that.
(g) The costs and fees associated with the arbitration proceeding, arbitrators, and the administrative judge must be covered by the defendants.
(h) A shared responsibility is implied when the defendants agree to arbitrate for any fees and costs that are acquired during arbitration.
(i) Only for the reason of arbitration, accountability of the damages that need to be paid will fall on the defendant. The offer of either the defendant or plaintiff to arbitrate cannot be used in an argument following any claim arising from the rejection of the claim or as evidence.
(j) Any subsequent claim or collateral cannot use the fact of accepting or making an offer to arbitrate as evidence for liability admissibility.
(k) Each defendant who has a claim against them must receive any offer to arbitrate that the plaintiff decides on. As provided in s.766.106, each plaintiff that has joined in the intent notice to file a lawsuit must be provided any offer to arbitrate by the defendant. If the plaintiff’s offer to arbitrate is rejected by the defendant, they may be subjected to the requirements of s.766.209(3). If the defendant’s offer to arbitrate is rejected by the plaintiff, they may be subjected to the requirements of s.766.209(4)
(l) All arbitrators can conduct a hearing, but any question of the fact and the final decision is made by a majority. All evidentiary matters shall be decided by the chief arbitrator.
Any mutual agreement that is made amongst the parties shall not stop at any time due to the to the elements of this subsection.
(8) The principles of law that currently exist will decide the financial responsibility to pay for the arbitration fees and who will have control of the claim of defense if the offer to arbitrate is not accepted if no written consent was provided by the defendant, self-insurer, or insurer of the defendant.
(9) The circulation of the rules which affect the arbitration processes of ss. 766.201-766.212 efficiency and orderly can be authorized by the Administrative Hearings Division.
(10) A review that is reasonable can be authorized by the Administrative Hearings Division, except when the administrative judge’s order is not abided by, and the rules of the division have been violated pursuant to s.120.54, or s 120.65.