Arbitration Agreement Held Unconstitutional In Stillbirth Case

The Florida Supreme Court threw out an arbitration agreement in the case of Hernandez v. Crespo, Case Number SC15-67 (December 22, 2016) because it violated public policy.  Thereafter, the doctor and her medical group requested that the Court reconsider their decision.

What Happened In The Case?

The plaintiff in the case, Lualhati Crespo, delivered a stillborn child in 2011 after being turned away from her doctor’s appointment because she was few minutes late.  On the date of the visit where she was turned away for being late, shew as 39 weeks pregnant and was having contractions.  Her visit was rescheduled to 4 days out in the future.  Ms. Crespo delivered a stillborn child on the 3rd day after her initial appointment.  Prior to getting medical care at Women’s Care Florida by Dr. Hernandez, Ms. Crespo was required to sign an arbitration agreement.

In this arbitration agreement, she agreed to the following essential terms:

1. any controversy regarding medical services would go to binding arbitration rather than a lawsuit;
2. if a party refuses to submit to arbitration, then the arbitration agreement stated that the arbitration could be conducted without the refusing party and the result would be binding
3. regardless of result, no appeal would be taken.

Ms. Crespo chose to file a lawsuit after the expiration of the pre-suit period and requested binding arbitration under Chapter 766’s outlined procedure.  Women’s Care Florida rejected that request for arbitration because the statute required that they admit liability.  Instead, Women’s Care Florida demanded binding arbitration under the agreement.

After hearing the case, the Florida Supreme Court held that the arbitration agreement mentioned above was void as against public policy stating “parties may contract freely around a statute, but ‘a contractual provision that contravenes legislative intent in a way that is clearly injurious to the public good violates public policy and is thus unenforceable.'” (Citing prior court precedent in Bowers, 116 So. 3d at 1247).

The Real Issue In The Case Is Whether The MM Arbitration Statute Can Be Unilaterally Altered

The problem that Women’s Care Florida has is that it had unilaterally changed the statutory procedures in the agreement in their favor.  That change in their own favor is what is void against public policy.  The purpose of the MM arbitration statute was to reduce litigation, attorney fees, and costs, as well as provide a vehicle to make it happen that was seen as fair by the Legislature.

While the Court said that parties are generally free to contract around state law, they cannot do so in a way that undermines the statute the purpose in passing the statute in the first place.  Likewise, an arbitration agreement that clearly favors one party contravenes the “substantial incentives” for both sides to take their cases to arbitration.

What Can A Valid MM Arbitration Agreement In Florida Not Have?

The Court found that there were six major places where the arbitration agreement contravened legislative intent:

1. the agreement does not concede the medical provider’s liability
2. the agreement does not guarantee independent arbitrators or that one arbitrator be an administrative law judge as required by statute
3. the agreement shares costs equally between the parties rather than having the losing party assume most of the costs of arbitration as in the statutory scheme
4. the agreement does not provide for payment of interest on damages
5. the agreement does not require joint and several liability of defendants as the MMA does
6. the agreement dispenses with the right to appeal provided by the statute

The likelihood of reconsideration by the Court is very slim in my opinion as they have already ruled with a 20 page written opinion.  This case will now proceed to a jury trial where six people will decide whether it was medically appropriate to reschedule a patient who was having active contractions.  It seems to me that being a few minutes late does not trump the fact that she may have been in labor.  Ultimately, the medical facts of this case will come down to causation and whether the fetus was in the womb too long, causing stillbirth.  Under Florida case law, having a stillborn baby due to negligence is considered an injury to the mother rather than a wrongful death case.

Call Us If You Need To Have A Medical Malpractice Issue Reviewed

If you are aware of an issue that may constitute medical malpractice, please give us a call to discuss your case at a no-cost consultation.  You should not be deterred by an arbitration agreement if you have signed one as it might be unenforceable.  Regardless of whether an arbitration agreement is enforceable, you should talk a Florida medical malpractice attorney to see whether you have a case.  If you have a medical malpractice case and the arbitration agreement is enforceable, you will still likely need legal counsel to help you through the arbitration.  Our office is located on Lakeland Hills Boulevard across from Lakeland Regional Health Medical Center.

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