Birth Injuries in Florida

In a recent case the parents of a child with birth defects sued an ob-gyn and the woman’s health clinic where she worked for medical malpractice. The child had severe birth defects that the parents believed were caused by a drug the woman had stared taking again in order to treat a chronic disease.

The woman claimed that the clinic knew she was planning to have a second child. An over-the-counter pregnancy test yielded a positive result. Two visits a few days later the clinic told her the pregnancy was nonviable.

The clinic recommended she have a dilation and curettage. She refused. After that she started taking a drug again believing the fetus would be expelled spontaneously. She claimed later she was not aware of the potential adverse effects of taking the drug should the baby be born. The baby was born.

The woman had signed an arbitration agreement agreeing to arbitrate claims such as the ones asserted here regarding the child’s defects. After the lawsuit was filed, the clinic moved to compel arbitration. The couple challenged the trial court’s order sending the case to arbitration.

The couple argued that the arbitration agreement violated the public policy as reflected in the medical malpractice statutes. Specifically, they argued that the Florida medical malpractice statutes required resolution of malpractice claims either through trial or statutory voluntary binding arbitration. The clinic argued the statutes were less broad.

The appellate court agreed with the clinic. It explained that the couple had chosen not to invoke the statutory voluntary binding arbitration described in section 766.207. This section outlines that after a pre-suit investigation that finds reasonable grounds for medical negligence, the parties can choose to have damages determined by an arbitration panel.

Either party can initiate this decision by serving a request for voluntary binding arbitration within 90 days of the claimant’s notice of intent to start litigation. Under the statutes, a defendant is to pay a medical malpractice claimant’s reasonable attorney’s fees and costs, which the arbitration panel will decide. In no event will they pay more than 15% of the award, reduced to present value. The defendant must also pay all costs of the arbitration proceeding other than the administrative law judge and all the defendants are jointly and severally liable for damages assessed.

The woman in this case had voluntarily signed the arbitration agreement before becoming pregnant and having her baby. The appellate court explained there was nothing procedurally or substantively unconscionable in the agreement, which specified the right to jury trial and consent to arbitrate all claims having to do with medical care.

The couple argued that prior case law compelled a reversal. They believed that a case held that if neither party tried to arbitrate a case under section 766.207, a malpractice claim could not be arbitrated at all. The couple claimed the arbitration agreement lessened their statutory rights.

The appellate court disagreed. It explained that nothing in the Act prohibited parties from arbitrating claims by private agreement outside the statute. The appellate court explained the agreement was not void as against public policy or that the statute precluded private binding arbitration agreements under the act.

If you have been hurt due to another person or entity’s negligence, contact the experienced Florida personal injury attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.

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