Arbitration

Florida does not require that medical malpractice actions be referred to an arbitrator, although judges are authorized to refer cases to non­binding arbitration. Florida does have the system of voluntary binding arbitration for the determination of damages, which gives defendants an option to limit non­economic damages in return for admitting liability. Arbitration, once chosen, is the exclusive means by which to seek recovery.

If a defendant refuses to accept the claimant's offer to arbitrate, the claimant, if successful at trial, is entitled to pre­judgment interest and up to 25 percent of the award in attorneys' fees.

If a claimant refuses to accept a defendant's offer to arbitrate, his recovery will be limited to economic damages, but only 80 percent of lost wages plus no more than $350,000 in non­economic damages.

If the claimant does accept, his recovery will be limited to economic damage, but only 80 percent of lost wages plus no more than $250,000 in non­economic damages, plus attorneys' fees of fifteen percent.

The damage cap in the arbitration statute has been held to be constitutional. A recent District Court of Appeal decision held that an arbitrator may award no more than $250,000 for a single wrongful death claim, regardless of the number of claimants. It certified to the Supreme Court the question whether the cap on non­economic damages of $250,000 per incident in a voluntary arbitration applies to each beneficiary under the Wrongful Death Act or applies in the aggregate to all beneficiaries.

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