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The Benefits and Risks of Using Presuit Voluntary Binding Arbitration as an Alternative Dispute Resolution Process in Medical Malpractice Cases

Featured Article

Illustration by Barbara Kelley Medical malpractice litigation is very costly, not only in monetary terms, but also because of the emotional toll the ordeal exacts upon the parties and their counsel during the protracted timeline to final disposition.1 Alternative dispute resolution (ADR) practices initiated prior to the onset of litigation can mitigate both the monetary and the emotional costs. ADR processes can be informal or formal. Risk management professionals and insurers, for example, may approach a patient to attempt to resolve a claim to the patient’s satisfaction without engaging in the formal legal process. A presuit mediation program in which the patient and the health care provider agree to engage a mediator to assist them in resolving their dispute prior to more formal legal action is also an effective mechanism to resolve claims early, efficiently, and in a less-costly manner.

In Florida, formal ADR procedures are found within the state’s statutory scheme at various stages of the litigation and prelitigation processes. Florida law requires that parties to a lawsuit attend court-ordered mediation in good faith.2 The court may also order the litigants to submit to nonbinding arbitration.3 Both of these ADR processes occur during the litigation phase of the lawsuit, often after the parties have incurred great costs. Voluntary binding arbitration is another statutory ADR process that parties to a claim may use to resolve their differences. Although this mechanism can be used in any civil dispute,4 a specific presuit voluntary binding arbitration (PVBA) process is available to parties at the earliest stage of a medical malpractice dispute. During the statutorily required presuit stage5 of a medical negligence claim, any party to the noticed claim may offer to submit to PVBA to resolve their case without litigation.6 Under this statutory scheme, the defendant admits liability, and the arbitration process is used solely to determine damages to be awarded to the claimant.7 This article introduces attorneys and insurers to the PVBA process, which, if used wisely, provides a very helpful mechanism to resolve medical negligence claims early, more cost-effectively, and with more predictable results for the parties involved.

Who May Engage in PVBA?
PVBA is not available for rights of action involving the state of Florida “or its agencies or subdivisions, or the officers, employees, or agents thereof.”8 For all other claimants and defendants, however, the PVBA process is available and may prove to be an effective ADR opportunity for all parties involved in the dispute.

Notice, Timing, and Process
During the presuit stage of a medical negligence claim, the parties may elect to have damages determined by an arbitration panel.9 Either party may initiate the process by serving a request upon the opposing party for arbitration on damages within 90 days after service of the claimant’s notice of intent to initiate litigation upon a defendant.10 If there are multiple defendants, the claimant must submit the offer to arbitrate to each defendant against whom the claimant has asserted a claim in the presuit notice of intent to initiate litigation.11  Conversely, if there are multiple claimants, any defendant who wishes to offer voluntary binding arbitration must submit the offer to each claimant who has joined in the notice of intent to initiate litigation.12 Acceptance of the request by a party within the statutorily defined time period constitutes a binding commitment to comply with the decision of the arbitration panel.13 Florida law further provides that an insurer or self-insurer of a party is prohibited from offering to arbitrate or to accept a claimant’s offer to arbitrate without the written consent of the insured.14

Once PVBA is accepted, no other recourse or remedy is available to the claimant against any participating defendant, and the process is undertaken with the understanding that damages will be awarded as provided by general law, including the Florida Wrongful Death Act, subject to some limitations discussed in this article.15 The consent to engage in PVBA, however, does not prevent the parties from settling their dispute at any time by mutual agreement.16

The timing of the arbitration hearing normally depends on coordinating the schedules of the parties and the arbitration panel. The panel consists of one arbitrator selected by the claimant, one selected by the defendant, and an administrative law judge from the Division of Administrative Hearings, who serves as the chief arbitrator.17 If there are multiple claimants or multiple defendants, the side or sides with multiple parties will attempt to agree upon a single arbitrator as the selection for their side. If the multiple parties cannot reach a consensus, each party individually will nominate an arbitrator, and the director of the Division of Administrative Hearings will appoint one of the nominated arbitrators to the arbitration panel.18 The arbitrators must be independent of the parties, the witnesses, and the legal counsel.19 The PVBA statute provides that “no officer, affiliate, subsidiary, or employee of any party, witness, or legal counsel may serve as an arbitrator in the proceeding….”20 The hearing is conducted by all of the arbitrators, but a consensus of all the arbitrators is not needed to determine factual issues or to make any final decision; only a majority of the arbitrators is required to resolve these matters.21 The chief arbitrator, however, decides all evidentiary matters.22 The procedural rules for conducting PVBA are promulgated by the Division of Administrative Hearings.23

If the parties agree to submit to PVBA, there are consequences relating to damages, costs, fees, and appeals. These consequences may be either beneficial or limiting, depending upon the status of the parties, the nature of the underlying claim, the number of claimants and defendants, and the types of recoverable damages.

Benefits to the Defendant
Limitations on Noneconomic Damages — The defendant receives the benefit of a cap on noneconomic damages that the arbitration panel can award. These damages are limited to $250,000 “per incident,” and may be reduced further by the percentage basis with respect to the claimant’s capacity to enjoy life.24 If, for example, the arbitration panel finds that the injury reduced the claimant’s capacity to enjoy life by 50 percent, the maximum noneconomic damages award per incident would be $125,000.

Although the per-incident language might, at first glance, be read to limit the total aggregate recoverable by all claimants from all defendants to $250,000, in St. Mary’s Hospital, Inc. v. Phillipe, 769 So. 2d 961 (Fla. 2000), reh’g den. (2000), the Florida Supreme Court interpreted the per incident language as permitting each claimant to recover noneconomic damages up to the cap of $250,000, regardless of the number of claimants. For example, if a claim is asserted by a husband who alleges injury caused by the negligence of one medical provider defendant, and his wife asserts a consortium claim, the two claimants may recover noneconomic damages up to $250,000 each, for an aggregate recovery of $500,000 from the sole medical provider defendant.

Conversely, in determining the application and calculation of the PVBA noneconomic cap in cases involving multiple defendants, the Third District Court of Appeal in Deno v. Lifemark Hospital of Florida, 45 So. 3d 959 (Fla. 3d DCA 2010), review denied, 57 So. 3d 846 (Fla. 2011), held that although there is a separate noneconomic cap of $250,000 for each claimant in the arbitration, the aggregate noneconomic damages payable to each claimant by all defendants in arbitration cannot total more than $250,000 per claimant, regardless of the number of defendants.25 If, for example, a single claimant is injured as a result of medical negligence by multiple defendants participating in the arbitration, the maximum possible amount of noneconomic damages in the aggregate that the claimant may recover from all the defendants is a total of $250,000. Therefore, the aggregate recoverable by any specific claimant will not exceed the noneconomic cap of $250,000, regardless of the number of defendants involved in the PVBA.

As evident from the court decisions, the number of claimants can change the calculus in determining the maximum noneconomic damages that may be awarded at arbitration. Furthermore, in order to evaluate fully and competently the benefits and risks of making, accepting, or rejecting PVBA offers, attorneys and insurers must consider the current legal status and impact of the 2003 tort reform noneconomic caps applicable to medical malpractice cases.26 The interplay between the PVBA statutory scheme and tort reform noneconomic caps will be addressed later in this article and in the illustrative tables.

No Punitive Damages — The Florida Legislature removed punitive damages from consideration by arbitrators, thus, relieving the defendant of the additional exposure to potentially large punitive damages awards if the parties agree to PVBA.27

Limits on Economic Damages and Periodic Payment Provisions — As noted previously, economic damages awardable by the arbitration panel are those provided by general law, including the Florida Wrongful Death Act. Accordingly, such damages may include, but are not limited to, past and future medical expenses, wage loss, loss of earning capacity, and net accumulations to the estate in wrongful death cases.28 Net economic damages related to wage loss and loss of earning capacity are limited to 80 percent of the net wage loss and loss of earning capacity calculated by the arbitrators, offset by any collateral source payments.29 Additionally, damages for future economic losses awarded by the arbitrators must be payable in periodic payments, offset by future collateral source payments,30 thereby mitigating the immediate adverse financial impact to the defendant.

Wrongful Death Considerations — When reviewing the case law interpreting the economic damage provisions of the PVBA statute, one must be aware of the statutory changes that occurred after certain decisions were published. For example, the original PVBA provisions were silent as to the treatment of economic damages for cases involving the Florida Wrongful Death Act. The Florida Supreme Court strictly construed the PVBA statutory language and held that all specifically listed economic damages in the original statute could be awarded by the arbitrators when the parties agreed to PVBA, regardless of the underlying cause of action.31 The court further held that the provisions of the Florida Wrongful Death Act could not limit the right to recover loss of earning capacity because the PVBA language under consideration by the court specifically enumerated such damages as recoverable.32 This interpretation had a chilling effect upon a defendant’s choice to offer to submit to PVBA and frustrated the legislative purpose of encouraging early resolution of medical malpractice claims.33 The Florida Legislature subsequently amended §766.207(7) in 2003 and added the following: “Arbitration pursuant to this section shall preclude recourse to any other remedy by the Claimant against any participating Defendant, and shall be undertaken with the understanding that damages shall be awarded as provided by general law, including the Wrongful Death Act…”

The legislature also amended §766.202(3) in 2003 as follows:

“Economic damages” means financial losses that would not have occurred but for the injury giving rise to the cause of action, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity to the extent the claimant is entitled to recover such damages under general law, including the Wrongful Death Act.

Interpreting the applicability of the Florida Wrongful Death Act for causes of action accruing after these 2003 statutory changes, the Third District Court of Appeal in Lifemark Hospitals of Florida, Inc. v. Alfonso, 4 So. 3d 764 (Fla. 3d DCA 2009), rev. den., 23 So. 3d 711 (Fla. 2009), recognized that the legislative change specifically included the limitations of recovery under the Florida Wrongful Death Act and held that these changes were constitutional. The court declared that because the loss of earning capacity was not recoverable under the Wrongful Death Act, the loss of earning capacity was not a measure of economic damages that arbitrators may award under the PVBA statute when the underlying claim was one for wrongful death.34 Defendants would reap some benefit from the limited scope of economic damages available under the Florida Wrongful Death Act.35

Contribution and Shielding Against Contribution Claims — When multiple defendants are involved in a medical malpractice presuit claim, the defendants who actually participate in PVBA receive both flexibility and protection regarding rights of contribution. Defendants participating in PVBA who pay damages assessed in arbitration have a right to seek contribution against nonparticipating defendants who contributed to the injury.36 Additionally, payment of a PVBA award by participating defendants extinguishes those defendants’ liability for contribution to any nonparticipating defendants.37

Benefits to the Claimant
Quick Resolution of the Claim — The PVBA process promotes a fast and certain resolution of the claim in a cost-effective manner, saving the claimant from the frustration associated with years of paper discovery, depositions, and delay, and further saving the claimant from the substantial costs associated with expert witnesses during the litigation process. Although misarbitration can occur when the arbitrators cannot reach agreement, the statutory scheme provides a streamlined process to dissolve the arbitration panel and appoint a new one.38

Generally, quick payment of the arbitrators’ award, including interest at the legal rate, is required within 20 days after the determination of damages by the arbitration panel, and, commencing 90 days after the arbitration award, interest accrues at a rate of 18 percent per year.39

Deterrence to Appeal — The PVBA award cannot be stayed by the arbitration panel or any member thereof, nor may the award be stayed by the circuit court.40 The district court of appeal for the district in which the arbitration takes place has jurisdiction over any appeal of the arbitration award.41 The appeal is limited to the review of the record42 and will not operate as a stay of the arbitration award, unless the district court of appeal stays the order to prevent manifest injustice.43 As an obvious deterrent to appeal, and to encourage finality, the PVBA provisions do not specifically provide for attorneys’ fees to be awarded to the prevailing party on appeal.44 These provisions may be very attractive to a claimant, especially when the arbitration panel’s award is generous. The claimant receives quick payment, without the high cost of litigation, and without a great risk of a successful appeal of the award by the defendant.

Arbitration Costs, Attorneys’ Fees, and Interest on Accrued Damages Are Paid by the Defendant — The defendant is required to pay the cost of the arbitration, including reasonable attorneys’ fees and the costs awarded by the arbitration panel, subject to a maximum payment of 15 percent of the award, reduced to present value.45 The defendant also pays the arbitrators’ fees, except that of the administrative law judge,46 and bears the responsibility for interest on accrued damages.47

The specified, statutory right to recover attorneys’ fees from the defendant under the PVBA statute is a significant benefit for the claimant to consider. Generally, the prevailing party cannot recover attorneys’ fees in litigation. In Florida, the “American Rule” applies, and unless a statute, rule, or contractual provision authorizes the award of attorneys’ fees to the prevailing party in litigation, no such fees will be recoverable.48 Each party normally bears its own attorneys’ fee cost. Accordingly, the claimant can benefit by settling early under the PVBA process with assured payment of attorney’s fees as part of the arbitration award.

Just as there are consequences for the parties when they accept PVBA, parties who refuse offers of PVBA face a number of consequences built into the legislative scheme.

Defendant’s Refusal of Offer of PVBA
Prejudgment Interest and Attorneys’ Fees — In addition to any costs awarded by the trial judge, the defendant would be required to pay prejudgment interest and reasonable attorneys’ fees up to 25 percent of the award, reduced to present value.49 Prejudgment interest can mount significantly during the protracted course of litigation. As noted previously, attorneys’ fees in general are not awarded to the prevailing party in a medical malpractice lawsuit. The threat of having to pay substantial attorneys’ fees to a prevailing claimant provides the claimant significant leverage when the claimant initiates the offer to resolve the dispute by voluntary binding arbitration.

Loss of the PVBA Caps on Noneconomic Damages — The $250,000 PVBA noneconomic cap would not be available to the defendant. Until recently, defendants in medical malpractice claims who did not offer or accept PVBA could rely upon the tort reform caps applicable under F.S. §766.118 (tort reform caps) to reduce noneconomic damages awarded by a jury.50 Recently, the Florida Supreme Court, in answering a certified question from the 11th Circuit, declared in Estate of Michelle Evette McCall, et al., v. United States of America, 134 So. 3d 894 (Fla. 2014), that the tort reform caps were unconstitutional as applied to wrongful death actions. The court in McCall observed that the statutory tort reform caps limited the aggregate noneconomic damages recoverable irrespective of the number of survivors, thus, violating the survivors’ rights under the equal protection clause51 of the Florida Constitution because the statutory cap imposed “unfair and illogical burdens on injured parties” when multiple claimants are involved.52 The court reasoned that the statutory plan:

irrationally impacts circumstances which have multiple claimants/survivors differently and far less favorably than circumstances in which there is a single claimant/survivor, and also exacts an irrational and unreasonable cost and impact when, as here, the victim of medical negligence has a large family, all of whom have been adversely impacted and affected by the death.53

The court in McCall, however, noted that there is a distinction between the tort reform caps and the PVBA noneconomic caps, which the court acknowledged were held to be constitutional in earlier cases.54 The practical considerations of the PVBA caps as a result of the McCall case are discussed in more detail later in the article, denoted in a short fact scenario, and illustrated in the tables at the end of this article.

Claimant’s Refusal of Offer of Voluntary Binding Arbitration
Reduced Caps on Noneconomic Damages — If a claimant rejects a defendant’s PVBA offer, the noneconomic damages awarded at trial will be reduced to $350,000 per incident.55 A lthough this recovery would be higher than the $250,000 cap per incident had the claimant accepted the offer of voluntary binding arbitration, the claimant loses the opportunity to attempt to recover greater noneconomic damages otherwise awardable in litigation.

Lower Recoverable Economic Damages — Refusing to accept the defendant’s offer reduces any jury award for lost wages and loss of earning capacity by 80 percent, reduced to present value.56

Attorneys’ Fees May Not Be Recovered — refusing to accept the defendant’s offer, the claimant foregoes the statutory benefit of defendants having to pay the claimant’s attorneys’ fees in an amount up to 15 percent of the arbitration award, as provided in the PVBA statute.57

Practical Considerations
Impact of McCall and St. Mary’s — Although PVBA provides a number of incentives to both parties to encourage early conflict resolution, the PVBA noneconomic caps may have the greatest influence in deciding to offer, accept, or reject PVBA, especially when the value of the claim consists primarily of noneconomic damages. As discussed previously, while the Florida Supreme Court has upheld the PVBA caps as constitutional, it declared the tort reform caps to be unconstitutional in wrongful death cases — a ruling that now calls into question the viability of the tort reform caps in medical malpractice cases not involving wrongful death. Practitioners must consider the potential ramifications from the impact of the McCall case to medical malpractice cases to fully evaluate the risks and benefits of PVBA in such cases. Additionally, at the time of publication, there was no case law addressing the applicability of the St. Mary’s per-claimant cap calculation ( St. Mary’s rule) related to the $350,000 PVBA cap (rejection cap), which is applicable when the claimant rejects a defense PVBA offer. It appears from the analysis, however, that trial courts can obviate the equal protection concerns expressed by the Florida Supreme Court if they apply the St. Mary’s per-claimant rule to the $350,000 PVBA rejection cap, instead of applying a single $350,000 aggregate cap that ignores the number of claimants.

Tables 1 and 2 (at the end of this article) contain examples that assume the tort reform caps in all cases will be determined to be unconstitutional in line with the equal protection analysis in McCall. In the multiple-claimant examples in Table 2, it is further assumed that the St. Mary’s rule applies whether the plaintiff accepts or rejects a defense PVBA offer. The total aggregate cap in the tables is determined by the number of claimants multiplied by the $250,000 cap when both sides agree to PVBA, and the aggregate is determined by multiplying the $350,000 rejection cap by the number of claimants when a defense PVBA offer is not accepted by the claimant. As evident from the tables, if the tort reform caps are determined to be unconstitutional for all medical malpractice cases, the PVBA caps provide the defense with significant protection against jury awards of noneconomic damages that otherwise would not be subject to statutory limits.

Because of space limitations, the author did not create tables with illustrations that assume that the aggregate tort reform caps will be upheld as constitutional in cases other than those involving wrongful death. If the tort reform caps are determined to be constitutional in such cases, many tables would be required to address a variety of factors. Such factors include, but are not limited to the classification of the defendant (practitioner or nonpractitioner), and whether the injuries from medical malpractice were catastrophic.58 In lieu of numerous tables addressing such permutations, a simple, multiple-claimant fact pattern illustrates the complexity of the interplay between the tort reform caps and the PVBA caps. The scenario assumes that the tort reform caps are upheld as constitutional in cases not involving wrongful death, and it further assumes that the St. Mary’s per-claimant cap would apply to the $350,000 PVBA rejection cap on noneconomic damages.

Scenario: A surgeon is alleged to have negligently caused noncatastrophic injury to a married patient. The patient asserts a claim for pain and suffering and the patient’s spouse asserts a consortium claim. If the defendant rejects a PVBA offer by the claimants, the tort reform aggregate cap would apply, regardless of the number of claimants.59 The tort reform cap in this situation totals $500,000.60 C oincidentally, had the defendant accepted the claimant’s PVBA offer, the per-claimant, aggregate PVBA cap would also be $500,000 ($250,000 per claimant under the St. Mary’s rule).61 If, however, the claimants reject a PVBA offer, the defendant is subject to the PVBA cap of $350,000 per claimant, for a total VBA noneconomic cap of $700,000, which exceeds the tort reform aggregate cap by $200,000. This fact pattern illustrates that if the tort reform caps are upheld as constitutional in cases not involving wrongful death, and if the St. Mary’s rule is applied to situations in which the claimant refuses a defendant’s PVBA offer, one cannot assume that in all instances the PVBA caps will be lower than the tort reform caps.

Practical Considerations Based Upon the PVBA Track Record — To understand the practical implications and effects of PVBA, a review of previous PVBA awards may be helpful in evaluating the efficacy of making, accepting, or rejecting an offer to engage in voluntary binding arbitration. In her survey of voluntary binding arbitration awards from 1998 to 2006, Marie H. Ruiz noted that when the parties had agreed to accept voluntary binding arbitration, only 11 resulted in an arbitration award because the parties often settled their cases before the arbitration hearing.62 It appears from the data that when parties agree to PVBA, the risks and benefits of the statutory scheme have the collateral effect of encouraging both sides to settle the dispute prior to the arbitration panel’s determination of damages. The survey also revealed that, in all but two cases, the panels awarded the statutory 15 percent maximum in costs and attorneys’ fees.63 Therefore, arbitration panels may be prone to award the full 15 percent statutory cap on costs and fees to the claimant. As discussed earlier, the arbitration panel may reduce the cap on noneconomic damages on a percentage basis relative to the capacity to enjoy life. Ruiz found that, except in wrongful death cases, the arbitration panel awards resulted in reductions from the cap.64 Although the data is limited, it appears that in cases not involving wrongful death it would be beneficial during the arbitration proceedings for both parties to contest vigorously the issue of the capacity to enjoy life in an attempt to obtain the most favorable award of noneconomic damages.

The incentives of PVBA to the defendant must be weighed against the risk of exposure to potentially higher aggregate noneconomic damages when multiple claimants are involved, the cost of the arbitration, and the payment of the claimant’s costs and attorneys’ fees. The incentives to the claimant must be evaluated in light of the caps on noneconomic damages, the willingness of the claimant to accept reductions in recovery of certain economic damages, and the willingness of the claimant to accept recovery for future economic damages in periodic payments. Claimants must also accept the reality that in all cases, except those for wrongful death, the arbitrators will most likely not award the full PVBA noneconomic cap.

It is clear from the PVBA statutory scheme that the Florida Legislature intended to encourage parties to settle medical malpractice disputes in avoidance of litigation. The legislature bestowed benefits upon the parties for accepting offers of PVBA and infused the leverage of risk to discourage parties from refusing such offers. Incentives to offer voluntary binding arbitration at the earliest stages of a medical malpractice dispute make this statutory process one that must be carefully evaluated by attorneys representing clients in medical malpractice cases and by insurers in assessing the value of medical malpractice claims. Attorneys and insurers must conduct a thoughtful and comprehensive analysis of the impact of the voluntary binding arbitration provisions in order to render competent, effective, and professional assistance to their clients. Failure to do so may result in a lost opportunity to maximize benefits and minimize risks inherent to the resolution of a medical malpractice claim.

Presuit Voluntary Binding Arbitration Tables 1 and 2

1 Components of this article were reprinted with permission of the University of Florida J. Hillis Miller Self-Insurance Program from an article by this author for internal publication in the State University System of Florida Board of Governors. See Daniel J. D’Alesio Jr. & Casey C. Gentzkow, Use of Presuit Binding Arbitration as an Alternative Dispute Resolution Process in Medical Malpractice Cases,
Risk Rx 2-9 (Jan.-March 2013).

2 Fla. Stat. §766.108 (2013); Fla. R. Civ. P. 1.700 et seq.

3 Fla. Stat. §766.107 (2013).

4 Fla. Stat. §44.104(1) (2013).

5 See generally Fla. Stat. §766.106 (2013) (discussing the requirements a claimant and defendant must follow before filing a medical negligence suit).

6 Fla. Stat. §766.207 (2013); see also Fla. Stat. §766.106(3)(b) (2013) (discussing defendant’s options during the presuit stage to either reject the claim, make a settlement offer, or make an offer to arbitrate).

7  Fla. Stat. §766.207(3) (2013).

8 Fla. Stat. §766.207(1) (2013).

9 Fla. Stat. §766.207(2) (2013).

10 Id.

11 Fla. Stat. §766.207(7)(k) (2013).

12 Id.

13 Fla. Stat. §766.207(3) (2013).

14 Fla. Stat. §766.207(8) (2013).

15 Fla. Stat. §766.207(7) (2013).

16 Id.

17 Fla. Stat. §766.207(4) (2013).

18 Id.

19 Fla. Stat. §766.207(5) (2013).

20 Id.

21 Fla. Stat. §706.207(7)(l) (2013).

22 Id.

23 Fla. Stat. §766.207(9) (2013).

24 Fla. Stat. §766.207(7)(b) (2013).

25 Deno, 45 So. 3d at 960.

26 See generally Fla. Stat. §766.118 (2013) (discussing limitations on noneconomic caps for practitioner and nonpractitioner defendants).

27 Fla. Stat. §766.207(7)(d) (2013).

28 Fla. Stat. §766.207(7) (2013).

29 Fla. Stat. §766.207(7)(a) (2013).

30 Fla. Stat. §766.207(7)(c) (2013).

31 St. Mary’s, 769 So. 2d at 973.

32 Id.

33 Gail L. Parenti, Voluntary Binding Arbitration and the Florida Supreme Court: The Disconnect Continues, Trial Advoc. Q. 16 (Summer 2004).

34 Lifemark, 4 So. 3d at 766.

35 See, e.g., Fla. Stat. §768.21(8) (discussing the exclusion of adult children survivors for recovery in medical malpractice cases brought under the Florida Wrongful Death Act).

36 Fla. Stat. §766.208(6) (2013).

37 Fla. Stat. §766.208(5) (2013).

38 Fla. Stat. §766.21(1) (2013).

39 Fla. Stat. §766.211 (2013).

40 Fla. Stat. §766.212(2) (2013).

41 Fla. Stat. §766.212(1) (2013).

42 Id.

43 Fla. Stat. §766.212(2) (2013).

44 See generally Fla. Stat. §766.212 (2013) (discussing appeal and stay of arbitration awards).

45 Fla. Stat. §766.207(7)(f) (2013).

46 Fla. Stat. §766.207(7)(g) (2013).

47 Fla. Stat. §766.207(7)(e) (2013).

48 See State Farm Fire & Gas Co. v. Palma, 629 So. 2d 830 (Fla. 1993); Moakley v. Smallwood, 826 So. 2d 211 (Fla. 2002); Talbott v. American Isuzu Motors, Inc., 934 So. 2d 643 (Fla. 2d DCA 2006). In addition to the PVBA statutory provisions, other limited exceptions to the American Rule in medical negligence cases include specific statutory entitlement under Fla. Stat. §766.79 (2013), implemented via Fla. R. Civ. P. 1.442 (proposals for settlement) and Fla. Stat. §57.105 (2013) (frivolous claim or defense).

49 Fla. Stat. §766.209(3)(a) (2013).

50 See generally Fla. Stat. §766.118 (2013) (discussing the different tort reform caps of noneconomic damages, depending upon the nature of the health care provider or entity and the type of injury involved).

51 Fla. Const, art. I, §2.

52 McCall, 134 So. 3d at 901.

53 Id. at 901-902.

54 See, e.g., University of Miami v. Echarte, 618 So. 2d. 189 (Fla. 1993); St. Mary’s, 769 So. 2d at 961 (upholding the PVBA caps provided the caps applied on a per claimant basis).

55 Fla. Stat. §766 209(4)(a) (2013).

56 Fla. Stat. §766.209(4)(b) (2013).

57 Compare Fla. Stat. §766.207(f) (2013) (provides specifically for attorneys’ fees when the claimant accepts PVBA) and Fla. Stat. §766.209(4) (2013) (does not specifically provide for attorneys’ fees when the claimant rejects an offer of PVBA).

58 See generally Fla. Stat. §766.118 (2013) (discussing limitations on noneconomic caps for practitioners and nonpractitioners and increased caps for catastrophic injury and injury resulting in vegetative state).

59 Fla. Stat. §766.209(3)(a) (2013).

60 Fla. Stat. §766.118(2)(a) (2013) (noncatastrophic aggregate cap for practitioner/physician negligence).

61 Fla. Stat. §766.207(7)(b) (2013).

62 Maria H. Ruiz, Voluntary Binding Arbitration Rulings in Medical Malpractice Claims: A Survey of Awards Entered from 1998 to 2006, 26 Trial Advoc. Q. 17 (Winter 2007).

63 Id.

64 Id.

Daniel J. D’Alesio, Jr. , is an associate director, claims and litigation, for the University of Florida, Florida State University, University of Central Florida, Florida International University, and Florida Atlantic Self-Insurance Programs. He is a graduate of Villanova University School of Law and has practiced law for 41 years, including 25 years of active duty as a Naval judge advocate and military judge. He is admitted to practice in Florida, the Commonwealth of Pennsylvania, the District Court for the Eastern District of Pennsylvania, and the U.S. Supreme Court.