Medical Negligence Arbitration Proceedings Before Florida s Division of Administrative Hearings

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1 A dministrative Law by W. David Watkins and Richard Lavery Medical Negligence Arbitration Proceedings Before Florida s Division of Administrative Hearings Medical negligence arb i phase before filing a law suit. tration proceedings, as The 1988 revision of the presuit an alternative to tra d i sta tu te rem ained in place w ithout tional civil tort actions, any substantial changes until Gov. offer potential advantages Bto ush, both in 2003, signed an ex ecu p lain tiffs (claim ants) and defendants. Specifically, uncertainty and risk will be su b stantially reduced in m any instances, m aking this alternative attractive to both parties. This article discusses the history of the medical negligence arbitration option, as well as the m andatory presuit process and the arbitration hearing itself, which is conducted under the auspices of Florida s Division of A dm inistrative Hearings. Background D uring the 1980s, m edical m alpractice insurance prem ium s skyrocketed as the rapidly increasing cost of medical care, coupled w ith large ju ry verdicts, strained m any insurers ability to rem ain solvent.1 W ith th e passage of S.B , lawmakers sought to create a mechanism to address the problem.2 In an attem pt to remedy the situation, the legislature passed a law requiring a p re su it in v e stig a tio n process and arbitration for all medical m alpractice claims.3 As the legislature stated, Medical m alpractice liability insurance prem ium s have increased dram atically in recent years, resu lting in increased medical care costs for m ost p a tie n ts and functional unavailability of m alpractice in su r ance for some physicians. 4 While discussed in g reater detail below, the p resuit investigation process essentially requires nascent litigants to engage in an inform al discovery tive order creating a task force to exam ine Florida s availability and affordability of medical m alpractice in su ran ce.5 The governor s Select T ask Force on H ealth care Professio n a l L ia b ility In s u ra n c e w as charged w ith m aking recom m endations for protecting F loridians access to high quality and affordable h ealth care. 6 The legislative plan seem ed obvious: C reate a way to save money by avoiding suit before judicial litigation and elim inate m eritless claims. As stated in Jackson v. Morillo, 976 So. 2d 1125, 1128 (Fla. 5th DCA 2007): The purpose of the medical m alpractice presu it screening statu te is to prevent the filing of medical m alpractice claims th a t are not legitim ate. W ith this backdrop, the task force set forth recommendations th a t are the crux of this article the voluntary binding arbitration process. The major recommendations encouraged mediation and requested a redefinition of dam ages in presuit arbitration to conform to dam ages under the Florida Wrongful D eath Act.7 Understanding the Presuit Process In order to u n derstand the Division of A d m in istrativ e H earin g s (DOAH) role in medical m alpractice arbitration proceedings, it is importa n t to have an understanding of the presuit process. The presuit process set forth in F.S. Ch. 766 frequently precipitates the decision to engage in arbitration, or even settlem ent, the inten t being th a t a diligent investigation by both parties will lead to a realistic evaluation of the claim.8 It is im portant to keep in m ind th a t not every tort claim arising in the field of medicine is susceptible to the presuit process. The question of w hether a particular claim falls under the presuit process depends solely on w hether it is a claim for m edical m alpractice.9 A claim for medical m alpractice m eans a claim arising out of the rendering of, or the failure to render, medical care or services. 10 Thus, th e m ain in quiry is w hether the action resulted from any medical, dental, or surgical diagnosis, treatm en t, or care.11 Some actions th a t may not require the presuit process include loss of consortium claim s, n u rsin g home claims, psychologist claims, pharm a cy claims, and health m aintenance organization claim s.12 In its entirety, the presuit process is to last 90 days, but can be extended by agreem ent of the parties.13 During this process, each side is required to m ake good-faith efforts to conduct inform al discovery and reasonable investigations.14 Types of discovery th at are typically utilized during this period are interrogatories, requests for production, unsworn statem ents, in te rv ie w s w ith th e c la im a n t s healthcare providers, and physical and m ental exam inations of claim an ts.15 Once th e p re su it in v estig atio n by th e claim ant is com plete, th e process requires th a t prior to filing suit, the claim ant m ust first mail a THE FLORIDA BAR JOURNAUMAY

2 notice of in ten t to each prospective defendant.16 The notice of in ten t is required to contain a verified m edical opinion from a m edical expert a tte s tin g th a t th e care ren d ered by the defendant fell below the appropriate standard of care and th at this negligence caused harm to the p atien t.17 The statutory language is specific and explains exactly who can act as a medical expert in issuing the opinion.18 W hile prospective de- CourtCall REMOTE COURT APPEARANCES Over 90,000 trips to and from Court avoided in 2013 alone! 1st Circuit Escambia County Pensacola Okaloosa County C restview Shalim ar Walton County DeFuniak Springs Santa Rosa Beach 2nd Circuit Franklin County A palachicola Leon County Tallahassee 5th Circuit Hernando County B rooksville Lake County Tavares M arion County Ocala 7th Circuit Flagler County B runnell Putnam County Palatka St. Johns County St. A ug u stine Volusia County D aytona Beach De Land 11th Circuit M iam i - Dade County M iam i 13th Circuit Hillsborough County Tampa 15th Circuit Palm Beach County Palm Beach Gardens 16th Circuit M onroe County Key West M arathon Tavernier 18th Circuit Brevard County Viera Seminole County Sanford 19th Circuit Indian River County Vero Beach M artin County S tuart Okeechobee County O keechobee St. Lucie County F o rt Pierce 20th Circuit Charlotte County Punta Gorda Collier County Naples Hendry County LaBelle Lee County Fort Myers United States Bankruptcy Courts M id d le D istrict o f Florida N o rth e rn D is tric t o f Florida CourtCall Video is now available! contact us for more information: * Ju d icia l o ffic e r s nam es are fo r reference on ly and are n o t an endorsem ent. 4 Not all Judges allow ComtCall for all appearances. fendants are not required to obtain a medical expert, they are required to investigate the claim in good faith and are well advised, if they are going to reject the claim, to obtain external review by a medical expert. Options Following the Presuit Process At the conclusion of the presuit process, a prospective d efen d an t m ust choose between one of four possibilities authorized by Ch The prospective defendant may reject the claim, make a settlem ent offer, offer to adm it liability and proceed to arbitration on the issue of damages, or do nothing (which will be deemed a rejection of the claim).19 If the claim is rejected, the prospective defendant m ust subm it a w ritten opinion from a medical expert w ith any response rejecting th e claim.20 However, if the prospective defendant chooses to ad m it liab ility and proceed to arbitration, DOAH s jurisdiction is invoked, and an adm inistrative law judge will be appointed to serve as the chief arb itrato r.21 The Arbitration Hearing Process As explained by th e court in E s trada v. Mercy Hospital, Inc., 121 So. 3d 51,53-54 (Fla. 3d DCA 2013): [I]n a proceeding for voluntary binding arb itratio n of a m edical negligence claim, the liability of the defendants is adm itted, and the only issue is damages, which are set by a panel of three arbitrators, one selected by the claim ant, one selected by the defendant, and an adm inistrative law judge designated by the Division of A dm inistrative Hearings who serves as the chief arbitrator. If the parties contractually agree to proceed with the arbitration process, the claim ant is prohibited from bringing a law suit against the defendant.22 The agreem ent creates a binding commitment to comply w ith the decision of the arbitration panel. A party invited to enter into arbitration m ust accept or reject the offer w ithin 30 days.23 As authorized by F.S (9), DOAH has adopted rules to promote the orderly and efficient conduct of m edical m alpractice arb itratio n assessm ent and allocation proceedin g s.24 The ru le s differ in m any significant respects from the Florida Rules of Civil Procedure, and counsel em barking on a medical m alpractice arbitration proceeding should fam iliarize them selves w ith th e rules. T his adm onition is reinforced in DOAH s in itia l order, which pointedly sta te s: [FJailure to com ply w ith those rules could have adverse consequences for the parties. 25 A m edical m alpractice a rb itra tion proceeding is commenced by the p arties filing w ith the DOAH clerk s office an executed agreem ent to arb itrate the medical negligence claim. Upon receipt of th e agreem ent and request for arbitration, the DOAH director will issue an order appointing the chief a rb itra to r (a DOAH ad m in istrativ e law judge), who in tu rn will issue an in itia l order advising the parties to comply w ith all applicable rules, including the nom ination of th eir respective arbitrators and alternates. Once the parties have subm itted their arbitrator nominees and the nominees have provided the required certification (attesting to their independence of all parties, witnesses, and legal counsel), the chief arb itrato r will issue an order confirming the arbitrators and an order requiring input from the parties regarding the estim ated num ber of days necessary to conduct the hearing, the proposed location of the hearing, and proposed m utually agreeable d ates a t le a st 90 days hence.26 After receipt of the parties input, the chief arb itrato r will issue a notice of arbitration hearing schedu ling th e assessm en t a rb itra tio n hearing. As in a typical civil suit, the p arties m ay obtain discovery as provided in Fla. R. Civ. P through 1.400, provided th a t no party may serve any w ritten interrogatories, req u ests for production or inspection, re q u e sts for adm issions, or requests for physical or m ental exam inations later than 50 days before the assessm ent arbitration hearing or after such other date as the chief a rb itra to r m ay order. M otions to compel discovery m ust contain a statem ent certifying th a t the movant 34 THE FLORIDA BAR JO URNAL/M AY 2015

3 has conferred w ith the opposing parties in a good-faith effort to resolve by agreem ent each issue raised and th a t they have been unable to do so. All depositions of w itnesses and all physical or m en tal exam inations m ust be completed no later th an 20 days before the arbitration hearing, unless th e chief a rb itra to r sets a different time. Sanctions to enforce discovery include those provided by the Florida Rules of Civil Procedure, except contem pt. W ith respect to motion practice, w ritten m otions are norm ally disposed of on the basis of the motion, to g eth er w ith any m em oranda in support or in opposition, following the expiration of a seven-day re sponse period. If the subject m atter of the m otion req u ires an earlier ruling, or if the chief arb itrato r dete rm in e s th a t o ral a rg u m e n t is required, the m ovant may arrange a motion hearing, which may be by telephone. All motions m ust include a statem en t th a t the m ovant has conferred with all other parties of record and m ust state, as to each party, w hether the party has any objection to the motion. The failure to include the required statem ent will result at best in a delayed ruling (while the chief arb itrato r aw aits a responsive filing from the other parties) or at w orst, an o rder su m m arily denying the motion due to the omission. Motions in limine are often a useful tool in identifying and narrowing the issues to be resolved by the panel at hearing. They should be filed as early as possible so rulings can be obtained well in advance of the hearing. Rule 60Q requires the p arties to file a prehearing stipulation by no later th an 15 days prior to the scheduled com m encem ent of th e hearing. The stipulation is required to co n tain, am ong o th e r th in g s: A b rief general statem en t of each party s position; a list of all exhibits to be offered a t th e hearing, n o t ing any objections thereto, and the grounds for each objection; a list of the nam es and addresses of all w itnesses intended to be called at the hearing by each party; expert w itnesses shall be designated; a concise, but detailed statem ent of those facts th a t are adm itted and will require no proof at hearing, together w ith any reservations directed to such admissions; a concise statem ent of those issues of law on which there is agreem ent; and a concise statem ent of those issues of fact and law, which rem ain for determ ination. The m ajority of medical m alpractice a rb itra tio n proceedings filed w ith DOAH are se ttle d p rio r to hearing.27 However, if the case is not settled, the hearing will convene as noticed. The h earing is jointly conducted by all of the arbitrators, but a m ajority determ ines any question of fact and renders a final decision. The chief a rb itra to r is responsible for deciding all evidentiary m atters.28 The claim ant, as the party asserting the rig h t to recover dam ages, has the burden of proving by a preponderance of the evidence th a t it is entitled to recovery, and to establish the am ount of damages to which it is entitled.29 Irrelevant, im m aterial, or unduly repetitious evidence will be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of th eir affairs is admissible, w hether or not such evidence would be adm issible in a trial in Florida courts. Any part of the evidence may be received in w ritten form, and all testim ony of parties and w itnesses m ust be made under oath.30 H earsay evidence may be used for the purpose of supplem enting or explaining other evidence, but it is not sufficient in itself to support a finding unless it would be adm issible over objection in civil actions.31 As in a civil trial, th e claim ant will present its case-in-chief first, followed by th e d efen d an t s case, and then reb u ttal, if any. All w itnesses are subject to cross exam ination. Since liability is not an issue, claim ant expert w itnesses typically include a physician who has exam ined the claim ant and who will opine as to the current and likely future physical condition of the claim ant, and an econom ist who w ill opine as to th e p resen t value of fu tu re medical expenses and wage loss and loss of future earning capacity. The claim ant and m em bers of claim a n t s im m ediate family may testify as to the claim ant s loss of capacity to enjoy life as a re su lt of the in jury. D efendants typically present c o u n te rv a ilin g e x p ert testim o n y from a physician and economist. It is unusual for the defendant medical service provider(s) to testify or even appear at hearing, since the c irc u m sta n c e s s u rro u n d in g th e negligence of the injury is irrelevant and inadmissible. In fashioning their INSURANCE COVERAGE AND BAD FAITH We represent individual and corporate policyholders in disputes with insurance companies. V er Pu. ik ; Lumpkin Helping businesses and individuals in coverage and bad faith disputes with their insurance companies since For more inform ation about our practice, please visit our website at or call us at th Floor I 100 SE Second Street Miami, Florida Suite 790 I 301 East Pine Street Orlando, Florida The hiring o f a lawyer is an im portant decision that should n ot be based solely upo n advertisements. Before you decide, ask us to send you free w ritte n inform ation about our qualifications and experience. THE FLORIDA BAR JOURNAL/MAY

4 case presentations, counsel should bear in m ind th a t while the arb itrators nom inated by the claim ant(s) and defendant(s) are typically very experienced in medical m alpractice m atters, it should not be assum ed th a t the chief arb itrato r will have a sim ilar background. Once all parties have rested their cases, the assessm ent arb itratio n panel will re tire to discuss the evidence and to arrive at a determ ination. U nless the panel unanim ously decides to defer entry of the arb itration aw ard, the arb itratio n aw ard will be announced on the record after the conclusion of the evidence.32 Any p a rty m ay request th a t a specific finding of fact or conclusion of law on a significant issue be included in the language of the award to aid in appellate review. There is nothing in statu te or rule th a t precludes an a rb itra to r who disagrees w ith the m ajority decision from including a dissenting statem ent in the award. An arbitration aw ard and an allocation of financial responsibility are final agency action for purposes of F.S Appeals m ust be taken to the d istrict court of appeal for the district in which the arbitration took place, are lim ited to review of the record, and otherwise proceed in accordance w ith F.S Damages Awardable in the Arbitration Proceeding In an a rb itra tio n h earin g, th e claim ant is e n title d to both economic and noneconomic dam ages.34 However, the award for noneconomic dam ages is s ta tu to rily cap p ed.35 Once the defendant accepts a rb itra tion, fault has been deemed adm itted for purposes of the action, and th e a rb itra tio n p anel w ill assess dam ages only.36 Economic dam ages include past and future medical expenses and 80 percent of wage loss and loss of earning capacity, offset by any collateral source paym ents.37 H ow ever, econom ic d am ages are awarded as provided by general law, including the Wrongful D eath Act.38 Noneconomic damages are limited to a maxim um of $250,000 per incident and are calculated on a percentage basis w ith resp ect to capacity to enjoy life.39 As stated in North M iam i Medical Center v. Prezeau, 793 So. 2d 1142, 1144 (Fla. 3d DCA 2001), the sta tu tory cap of $250,000 on noneconomic dam ages awarded in arbitration of medical m alpractice claims is part of the statutory scheme to encourage the arbitration of medical negligence claim s. A ccording to S t. M a ry s Hosp., Inc. u. Phillipe, 769 So. 2d 961, 967 (Fla. 2000), it is im portant to realize th a t the noneconomic dam ages cap of $250,000 per incident in the arbitration provisions of the Medical M alpractice Act lim ited the recovery of each claim ant individually to $250,000, and does not lim it total recovery of all claim ants in the aggregate to $250,000. Since the statutory m eaning of claim ant and per incident was ambiguous, the Florida Suprem e Court had to refer to legislative history and equal protection concerns to determ ine th a t the cap applied individually to claimants. The T hird D istrict C ourt of Appeal later discussed this in Deno v. Lifem ark Hosp. o f Florida, Inc., 45 So. 3d 959, 960 (Fla. 3d DCA 2010). Here, the court found th a t the noneconomic dam ages cap of $250,000 per incident in statu te governing v o lu n ta ry b in d in g a rb itra tio n of m edical negligence claim s lim its recovery to $250,000 per claim ant, per incident not per claim ant, per defendant. W hen determ ining net economic dam ages, w hich typically include lost earnings and past and future m edical expenses, it is im p o rtan t to draw a tten tio n to th e E strada c a se.40 At h e a rin g, Ms. E s tra d a sought lost-wage dam ages based on her estim ated lifespan prior to her illness (pre-injury life expectancy), w hich was estim ated to be a t 82 years of age.41 In response, Mercy H ospital argued th a t E strad a was essen tially trying to craft a way of having a personal injury claim survive death of the injured party and, therefore, dam ages should be aw ardable only up to her projected post-illness lifespan, which would be significantly shorter.42 In arriving a t an award, the arbitration panel agreed w ith Mercy Hospital, lim iting E strad a s dam ages to her projected post-injury lifespan. On ap p eal, how ever, th e court rev ersed and held w ith E stra d a. The court observed th a t in an action for medical m alpractice based on a delayed diagnosis and treatm en t of b reast cancer, dam ages for loss of earning capacity should have been based on the p atien t s pre-injury life expectancy since her survivors and heirs will be precluded from recovery for medical negligence after her death.43 The court further noted th a t while a decedent s survivors may, in an action for wrongful death, recover the value of future loss of support and services and the decedent s estate may recover loss of prospective net accum ulations, under F lorida law, a subsequent w rongful death action is barred if the personal in ju ry litigation results in a judgm ent favorable to the injured person based on the sam e tortious conduct.44 Constitutional Challenges F.S. Ch. 766 and the presuit process m a n d a te d th e re in spaw ned constitutional challenges. In Bonati v. A llen, 911 So. 2d 285, 287 (Fla. 2d DCA 2005), the Second D istrict Court of Appeal stated th a t the s ta t ute should be construed in a m anner th a t favors access to courts. The access to courts issue was revisited by the F ifth D istrict in Pierrot v. Osceola M ental Health, Inc., 106 So. 3d 491, 493 (Fla. 5th DCA 2013), in which the court concluded th a t the presuit requirem ents of the Medical M alpractice Act had the potential to restrict a plain tiff s constitutional right of access to courts. Thus, while the statu te rem ained intact, it m ust be construed narrow ly and ensure access to the courts. As w ith the presuit process, there have been sev eral c o n stitu tio n a l challenges to the arb itratio n provisions of Ch. 766, in particular, the cap on noneconomic dam ages45 and the denial of access to the courts and right to trial by a jury.46 However, in 1993, two Florida Suprem e Court decisions held th a t the statu te was not a denial of access or the right to trial by a jury. In HCA Health Servs. o f Fla., Inc. v. Branchesi, 620 So. 2d 36 THE FLORIDA BAR JOURNAL7MAY 2015

5 176, 177 (Fla. 1993), the court held th a t F.S and do not violate th e rig h t of access to the courts. And in Univ. o f M iam i v. Echarte, 618 So. 2d 189, 191 (Fla. 1993), the court ruled th a t the sta tu tory cap on noneconomic dam ages in medical m alpractice claims when the parties subm it to arbitration do not violate the right to trial by jury, equal protection g u arantees, substantive or procedural due process rights, single subject requirem ent, taking clause, or nondelegation doctrine. Advantages and Disadvantages of Arbitration M edical m alpractice arb itratio n offers incentives th a t m ay be a t tractive to both claim ants and defendants. Incentives for both parties are th a t no ju ry is seated and each side is allowed to nom inate one of the three arbitrators.47 Defendants are g u aran teed a cap on noneconomic dam ages, avoid th e risk of punitive dam ages, and are able to have the claim resolved in a far less expensive setting.48 C laim ant incentives include quick, less expensive proceedings, paym ent of attorneys fees and costs by the defendant, and elim ination of liability as an issue.49 As stated in Echarte: [A] claim ant who accepts a defendant s offer to have dam ages determ ined by an arbitration panel receives the additional benefits of 1) th e relaxed evidentiary standard for arbitration proceedings as set out by [F.S. [ (1989); 2) joint and several liability of m ultiple defendants in arbitration; 3) prom pt paym ent of damages after the determ ination by the arbitration panel; 4) interest penalties ag ain st th e defendant for failure to prom ptly pay the arbitration award; and 5) lim ited appellate review of the arb itration aw ard requiring a showing of m anifest injustice. 50 In conclusion, counsel rep resen t ing w ould-be litig a n ts in a m edical m alpractice action should not overlook the potential benefits and protections available to th eir clients th ro u g h th e b in d in g a rb itra tio n process. 1 G lenn M. Burton, F lorida M edical Malpractice H andbook (2006). 2 Id. a t Id. For purposes of this article, m edical m alpractice and medical negligence claim s will be referred to as m edical m a lp ra c tic e c la im s. T he s ta tu to r y framework for the Medical M alpractice Act was originally created under F.S. Ch. 768, but was renum bered in 1988 to Ch. 766, where it is still found today. See F la. Stat , et seq. 4 F la. Stat (l)(a) (2003). 5 Fla. Exec. O rder No (Aug. 28, 2002). 6 Fla. Exec. O rder No (Aug. 28, 2002); see E state o f M ccall v. U nited States, 134 So. 3d 894 (Fla. 2014) (for a sum m ary of the task force s actions). 7 Glenn M. Burton, F lorida Medical Malpractice Handbook 2.1 (2006). sid. 9 Id. at 2.2 ( There are two components to answ ering th is question. The first com ponent is w hether th e prospective defendant is included w ithin the am bit of F.S. Ch If so, the second component is w hether the claim is the type of claim covered under the statute. Not all claims against a health care provider are subject to the m andates of F.S. C hapter 766. ). 10 Edw ard J. Carbone, P resuit N uts'n B olts, Insight from Carlton F ields 1 (2011). 11 Id. 12 Glenn M. Burton, F lorida Medical 13 Fla. Stat (3)(a), (4) (2014). 14 F la. Stat (3) (2014). 15 F la. Stat (6) (2014). 16 F la. Stat (2)(a) (2014). 17 F la. Stat (2), (3) (2014). 18 F la. Stat (6) (2014). 19 F la. Stat (3)(b)(l)-(3) (2014); see also E dw ard J. C arbone, P resuit N uts'n Bolts, Insight from Carlton F ields 10 (2011). 20 F la. Stat (3) (2014). 21 F la. Stat (2), (4) (2014). 22 F la. Stat (7) (2014). 23 F la. Stat (3) (2014). 24 F la. Admin. Code R. 60Q (2014). While this article focuses prim arily on the conduct of an assessm ent arbitration hearing, in which more th an one defendant has participated in the assessm ent arb itra tio n proceeding, any defendant against whom an arbitration aw ard has been m ade m ay in itiate an allocation proceeding to determ ine th e extent to w hich each co-defendant w ill be held responsible for th e aw ard; F la. Admin. Code R. 60Q-3.026(1). 25 See, e.g., Post v. Tallahassee Medical Center, Inc., DOAH Case No MA, Notice R egarding Applicable Rules and Service of Pleadings (Aug. 25, 2014); see also Tallahassee M emorial Regional Medical Center, Inc. v. Kinsey, 655 So. 2d 1191 (1995). 26 F la. Stat (4) (2014). In the event of m ultiple plaintiffs or m ultiple defendants, th e a rb itra to r selected by the side w ith m ultiple parties shall be the choice of those parties. If the m ultiple parties cannot reach agreem ent as to th eir arbitrator, each of the m ultiple parties shall subm it a nominee, and the director of the Division of A dm inistrative H earings sh all appoint th e a rb itra to r from among such nominees. 27 F la. A dmin. Code R. 60Q-3.022(2014) (providing th a t no later th an 10 days before the assessm ent arbitration hearing, the parties or th eir attorneys are to m eet to discuss the possibility of an amicable resolution of the proceeding). 28 F la. Stat (7X1) (2014). 29 See Dep t oftransp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). 30 F la. Stat (2)(g) (2014). 31 F la. Stat (l)(c) (2014). 32 F la. Admin. Code R. 60Q (2014). 33 F la. Stat (1) (2014). 34 Glenn M. Burton, F lorida Medical 35 F la. Stat (7) (b) (2014). 36 Glenn M. Burton, F lorida Medical 37 Fla. Stat (7) (a) (2014). 38 F la. Stat (7) (2014). 39 F la. Stat (7)(b) (2014). 40 E strada, 121 So. 3d a t 54. In th is case, Ms. E strad a was diagnosed w ith stage-three b reast cancer on or about Septem ber Two years prior to the diagnosis, Ms. E strada visited Dr. Agarwal for a routine m am mogram. At the original visit, this type of cancer should have been easily noticed and reported, but was not and finally w orsened to the point w here it would reoccur and was incurable. In knowing this, Ms. E strada sued Mercy H ospital and Dr. Agarwal for negligence, claiming th a t Agarwal failed to report evidence of the microcalcification during a routine mam mogram more th an two years earlier. Both defendants chose to adm it liability and proceed to arbitration. 41 Id. at Id. at Id. at Id. 45 Glenn M. Burton, F lorida Medical 46 Id. 47 Fla. Stat (4) (2014). 48 Id. 49 Glenn M. Burton, F lorida Medical 50 Echarte, 618 So. 2d a t 194. IF. D a vid W a tkin s is an adm inistrative law judge o f the Florida Division o f A d ministrative Hearings. He regularly serves as chief arbitrator in medical negligence arbitration proceedings before DOAH. R ich a rd Lavery is a third-year law student at Florida State University College of Law and clerked with DOAH during the Fall 2014 semester. He plans on practicing law in Florida after passing the bar and is interested in practicing in the field of health law. The authors gratefully acknowledge the assistance o ff S U law student Valerie Little in the preparation o f this article. This column is subm itted on behalf o f the Administrative Law Section, Daniel E. Nordby, chair, and Stephen Emmanuel, editor. THE FLORIDA BAR JOURNALVMAY

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