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Doctors Use Arbitration Agreements to Escape Jury Trials

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Arbitration agreements seem to be popping up in every kind of transaction these days. For those who are unfamiliar with them, they are contracts where parties give up their rights to go to court and present their cases to judges and juries. These probably make sense in a lot of commercial relationships like with credit cards, exterminators, cell phones or FedEx. It will in most cases streamline the dispute resolution process by eliminating the time and delay that most litigants experience if they are trying to move their case through our already-overburdened legal system.

I have been suing doctors and hospitals in Miami for over twenty years, and recently I have seen these arbitration agreements pop up in plastic surgery and nursing home cases with an alarming frequency. I do not believe that health care is a commercial transaction. Sure, money is exchanged for services, but the inclusion of arbitration agreements by doctors and clinics highlights the fact that, to most providers, patients are nothing more than customers -- customers who carry a limited profit upside and a potentially unlimited legal exposure downside, when and if things go wrong.

Florida's doctors, hospitals and nursing homes already enjoy extraordinary protection from lawsuits. Firstly, doctors are legally permitted to practice medicine in Florida without having medical malpractice coverage. A doctor cannot drive to the hospital without having the mandatory minimum auto insurance, but doctors can, and often do, operate on patients without having malpractice insurance.

Secondly, Florida enforces the most difficult legal procedural hurdles to suing doctors and hospitals, starting with a shortened statute of limitations. Statues of limitations are the time limits imposed upon parties to initiate a law suit. If the same doctor runs a patient over in the parking lot of the hospital, the injured patient would have four years to sue that doctor, but if the very same doctor operates on the wrong leg or fails to diagnose the same patient's cancer, that patient only has two years to start a law suit.

Thirdly, injured patients cannot just go ahead and file suit against doctors and hospitals in Florida. Claimants have to undergo a lengthy, expensive and secretive presuit process that takes time and money away from the injured patient and helps the doctor or hospital build their defense.

Fourthly, caps on damages are the ultimate protection for Florida's hospitals and doctors. They place limits on how much compensation an injured patient or grieving family is entitled to when doctors or hospitals commit negligence.

The list goes on and on, but by allowing arbitration agreements to be used in the context of medical procedures, patients often unknowingly give away their rights to sue doctors in courts of law. This week, an appellate court in West Palm Beach overturned a trial judge who ordered an arbitration agreement be enforced against Jack Lepisto, a resident of The Point at Newport Place, an assisted living facility. Mr. Lepisto had appointed his wife, Nancy, as his "Financially Responsible Party" and "Resident Representative." The nursing home added an addendum to the contract which provided for arbitration between the parties which was not signed by Mr. Lepistos or his wife as his representative.

Shortly after becoming a resident of Newport Place, Mr. Lepisto was injured. When he sued the nursing home, they moved to compel arbitration based on an addendum to the contract. The Lepisto successfully argued that Mr. Lepisto had never sought to be bound by the arbitration agreement. The Lepistos were fortunate as most courts bend over backwards to enforce arbitration agreements even when signed without a patient even understanding what they signed.

Florida's legislature needs to take some steps to curb the abuse of arbitration agreements. I would like to see them banned entirely or, at a minimum, legislation should be put in place that would mandate physicians provide these types of agreements to patients days in advance of a procedure. The agreements should have uniform clear typesetting that informs a patient of the significant rights that are being abandoned if they sign the agreement with a recommendation that the patient seek the advice of legal counsel before signing it.

Florida's healthcare providers already have enough legal protection; it's time that patient safety becomes a priority.