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Arbitration Agreements: Cherry Picking Turned Sour

Arbitration agreements between medical providers and their patients must include both the pros and the cons of the arbitration provisions under the Chapter 766, Florida’s Medical Malpractice Act. DiLorenzo and DiLorenzo v. Lam and Family Foot and Leg Center, 42 Fla. L. Weekly D286a (Fla. 2d DCA February 1, 2017).

In DiLorenzo, the parties entered into an agreement, which included an arbitration clause. However, the defendants cherry-picked only the benefits of arbitration under the Medical Malpractice Act—such as a cap on damages—without including the pitfalls—like concession of liability.

The appellate court held the arbitration provisions in Chapter 766, Fla. Stat., are not severable; therefore, the arbitration agreement between the parties was not enforceable.

To enforce these agreements in medical malpractice claims, defendants will have to take the bad with the good. Arbitration agreements in general face a lot of scrutiny in light of the rights to due process and access to courts as provided in Florida’s Constitution. Courts attempt to balance these rights with individuals’ right to contract freely, but any time Constitutional rights may be affected, courts often err on the side of caution.


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