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The Florida Statutes

The 2017 Florida Statutes

Title XLV
TORTS
Chapter 766
MEDICAL MALPRACTICE AND RELATED MATTERS
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F.S. 766.107
1766.107 Court-ordered arbitration.
(1) In an action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in 2s. 768.50(2), the court may require, upon motion by either party, that the claim be submitted to nonbinding arbitration. Within 10 days after the court determines the matter will be submitted to arbitration, the court shall submit to the attorneys for each party the appropriate list of arbitrators prepared pursuant to subsection (2) and shall notify the attorneys of the date by which their selection of an arbitrator must be received by the court.
(2)(a) The chief judge of the judicial circuit shall prepare three lists of prospective arbitrators. A claimant’s list shall consist of attorneys with experience in handling negligence actions who principally represent plaintiffs and who are eligible and qualified to serve as arbitrators. A defendant’s list shall consist of health care practitioners, and attorneys who principally handle the defense of negligence actions, who are eligible and qualified to serve as arbitrators. A third list shall consist of attorneys who are experienced in trial matters but who do not devote a majority of their practice either to the defense or to the representation of plaintiffs in medical negligence matters. The chief judge shall appoint an advisory committee made up of equal numbers of at least three members of the defense bar and three members of the plaintiff’s bar, which shall approve the qualifications of the persons on the claimant’s list and the persons on the defendant’s list. The advisory committee shall assist the chief judge in screening applicants and aiding in the formulation and application of standards for selection of arbitrators. Each committee shall meet at least once a year.
(b) A person may be certified to serve as an attorney arbitrator if the person has been a member of The Florida Bar for at least 5 years and the chief judge determines that he or she is competent to serve as an arbitrator. A person may be certified as a health care practitioner arbitrator if the person has been licensed to practice his or her profession in this state for at least 5 years and the chief judge determines that he or she is competent to serve as an arbitrator. Current lists of all persons certified as arbitrators shall be maintained in the office of the clerk of the circuit court and shall be open to public inspection. An attorney may not be disqualified from appearing and acting as counsel in a case pending before the court because he or she is serving as an arbitrator in another case.
(c) The plaintiff or plaintiffs shall select one arbitrator from the claimant’s list and the defendant or defendants shall select one arbitrator from the defendant’s list, and each shall notify the chief judge of such selection. If a party does not select his or her arbitrator within 20 days, the party’s right to select an arbitrator is waived and the chief judge shall proceed with the selection of an arbitrator from the appropriate list. The two arbitrators selected shall, within 10 days after their selection, select a third arbitrator from the third list. If the arbitrators have not selected the third arbitrator within such 10-day period, the chief judge shall submit three names from the third list to the two arbitrators. Each arbitrator shall strike one name from the list, and the person whose name remains shall be the third arbitrator. No person may serve as an arbitrator in any arbitration in which he or she has a financial or personal interest. The third arbitrator shall disclose any circumstances likely to create a presumption of bias which might disqualify him or her as an impartial arbitrator. Either party may advise the chief judge why an arbitrator should be disqualified from serving. If the third arbitrator resigns, is disqualified, or is unable to perform his or her duties, the chief judge shall appoint a replacement. If an arbitrator selected by one of the parties is unable to serve, that party shall select a replacement arbitrator, unless he or she has waived such right, in which case the replacement shall be selected by the chief judge. The chief judge shall designate one panel member as chair.
(3)(a) Immediately upon the selection of the arbitrators, the clerk of the circuit court shall communicate with the parties and the arbitrators in an effort to ascertain a mutually convenient date for a hearing and shall then schedule and give notice of the date and time of the arbitration hearing. The hearing shall be scheduled within 60 days after the date of the selection and designation of the arbitrators, provided that there has been at least 20 days notice to the parties. Thereafter, the chief judge may for good cause shown grant a continuance of the hearing, provided that the hearing is rescheduled within 90 days after the date of the selection and designation of the arbitrators.
(b) The panel shall consider all relevant evidence and decide the issues of liability, amount of damages, and apportionment of responsibility among the parties. Punitive damages may not be awarded by the arbitration panel.
(c) The arbitration hearing may proceed in the absence of a party who, after due notice, fails to be present, but an award of damages shall not be based solely on the absence of a party.
(d) At least 10 days prior to the date of the arbitration hearing, each party shall furnish every other party with a list of witnesses, if any, and copies or photographs of all exhibits to be offered at the hearing. The arbitrators may refuse to hear any witness or to consider any exhibit which has not been disclosed.
(e) The hearing shall be conducted informally. The Florida Rules of Evidence shall be a guide, but shall not be binding. It is contemplated that the presentation of testimony shall be kept to a minimum and that cases shall be presented to the arbitrators primarily through the statements and arguments of counsel.
(f) The arbitrators may receive and consider the evidence of witnesses by affidavit, but shall give it only such weight as the arbitrators deem it is entitled to after consideration of any objections made to its admission.
(g) Any party may have a recording and transcript of the arbitration hearing made at his or her own expense.
(h) The members of the arbitration panel shall be paid $100 each for each day or portion of a day of service on the arbitration panel. The court shall assess each party equally for such payments.
(i) No member of the arbitration panel shall be liable in damages for any action taken or recommendation made by such member in the performance of his or her duties as a member of the arbitration panel.
(j) The decision of the arbitrators shall be rendered promptly and not later than 30 days after the date of the close of the hearings. The award of the arbitrators shall be immediately provided in writing to the parties. The award shall state the result reached by arbitrators without necessity of factual findings or legal conclusions. A majority determination shall control the award.
(4) The decision of the arbitration panel shall not be binding. If all parties accept the decision of the arbitration panel, that decision shall be deemed a settlement of the case and it shall be dismissed with prejudice. After the arbitration award is rendered, any party may demand a trial de novo in the circuit court by filing with the clerk of the circuit court and all parties such notice as is required by rules adopted by the Supreme Court.
(5) At the trial de novo, the court shall not admit evidence that there has been an arbitration proceeding, the nature or the amount of the award, or any other matter concerning the conduct of the arbitration proceeding, except that testimony given at an arbitration hearing may be used for the purposes otherwise permitted by the Florida Rules of Evidence or the Florida Rules of Civil Procedure. The trial on the merits shall be conducted without any reference to insurance, insurance coverage, or joinder of the insurer as codefendant in the suit. Panel members may not be called to testify as to the merits of the case.
(6) The Supreme Court may adopt rules to supplement the provisions of this section.
(7) This section shall apply only to actions filed at least 90 days after October 1, 1985.
History.ss. 15, 49, ch. 85-175; s. 4, ch. 86-286; s. 10, ch. 86-287; s. 1152, ch. 97-102.
1Note.This section was created by s. 15, ch. 85-175, and transferred to s. 766.107 by the reviser in 1988. Section 17, ch. 85-175, also created a s. 768.575, which was renumbered by the reviser as s. 768.595 in 1985, transferred to s. 766.109 in 1988, and repealed in 1992. Section 49, ch. 85-175, as amended by s. 4, ch. 86-286, provides, in pertinent part, that “[s]ection 768.575 . . . as created by this act . . . is repealed on October 1, 1988, and shall be reviewed by the Legislature prior to that date.”
2Note.Repealed by s. 68, ch. 86-160.
Note.Former s. 768.575.