Florida’s Supreme Court Prohibits Contracting Around the State’s Arbitration Statute for Medical Malpractice

Hernandez v. Crespo, 211 So.3d 19 (Fla. 2016)

Florida’s Medical Malpractice Act (MMA) contains a set of provisions that allow patients and care providers to arbitrate disputes over medical malpractice. See Fla. Stat. § 766.207(7)(f)–(g) (2003). This statute requires, inter alia, that the agreement (1) concede the provider’s liability; (2) guarantee independent arbitrators; (3) have the provider bear the arbitration’s costs; (4) guarantee that the provider pays interest on damages; and (5) establish the right to appeal the arbitrators’ decision.

Florida’s Supreme Court recently decided that parties cannot change these provisions by contract. The Court reasoned that “arbitration agreements which change the cost, award, and fairness incentives of the MMA statutory provisions contravene the Legislature’s intent and are therefore void as against public policy.”