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Some interesting facts about Medical Malpractice Mediation & MANDATORY Mediation Florida Statutes 766.108 –

September 2, 2013

FYI some interesting facts about Medical Malpractice Mediation in FLORIDA and other places:I think I’ve heard enough about mandatory mediation…get the picture? Hearings Hearings perhaps that’s the way to go for this PARTICULAR CASE…and issues of material facts…(I wish I was an attorney but I think this applies.)

Florida Statutes 120.57 – Additional procedures for particular cases Florida Statutes > Chapter 120 > 120.57
Current as of: 2012 http://www.lawserver.com/law/state/florida/statutes/florida_statutes_120-57 Check for updates 2011 version

(1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING DISPUTED ISSUES OF MATERIAL FACT.-
(a) Except as provided in ss. 120.80 and 120.81, an administrative law judge assigned by the division shall conduct all hearings under this subsection, except for hearings before agency heads or a member thereof. If the administrative law judge assigned to a hearing becomes unavailable, the division shall assign another administrative law judge who shall use any existing record and receive any additional evidence or argument, if any, which the new administrative law judge finds necessary.

Who dare put a cap or value on my Herman’s life which is/was more precious to me than rubies and riches…

If he could only see me now...LOVE NEVER FAILS that's the LAW!

If he could only see me now…

MVC-006S   DEBBIE  HERMAN FLA
From: http://blogs.wsj.com/health/2010/12/14/big-challenge-for-mediation-in-medical-malpractice-doctor-participation/ “The authors write that in no cases did physicians participate in the mediation. That misses some opportunities — first, to “repair the relationship between human beings,” that is, the physician and the patient (or family of the patient), Carol Liebman, co-author of the study, a professor of law at Columbia Law School and director of the school’s mediation clinic, tells the Health Blog. It also misses the chance to collect information from patients, families and physicians to fill in the blanks of what actually happened, and if there was an error, to figure out how to prevent it from happening again, she says. The mediation approach used in the study holds that any information important to someone at the table, not just what is legally relevant, can be discussed. (Information disclosed during mediation is confidential.)”
“ When you don’t have the involvement of “the person who is involved in these decisions, day in and day out, you don’t get valuable information,” Liebman says. “A lawyer’s job is to defend the case, not to reshape policy.”

From: http://www.mccammongroup.com/articles/medical-malpractice-mediation.asp
“It is often said that mediation takes place in the “shadow of the law”. This means that both parties are seeking to understand and to persuade the other party of their best estimate of what the trial result is likely to be. Mediators work in this context by asking pertinent questions in the course of mediation and conveying information so that all parties understand the risks of trial. A realistic appreciation of the risks for both the patient and the physician is what drives the negotiation. No matter how well educated and trained a physician may be, his field of expertise is rarely the legal system.
In discussions with his counsel and the mediator, the physician will be able to address any interests he may have in regard to the claim. For example, confidentiality is a very important interest for many physicians. While the National Practitioner Data Bank and the laws of the Board of Medicine make it difficult to assure total confidentiality, with mediations, there are certain aspects of the matter which can be kept private and out of the newspaper. On the other hand, once a case goes to trial, the case becomes a matter of public record and details of it are readily accessible. “

Florida Statutes 766.108 – Mandatory mediation and mandatory settlement conference in medical negligence actions
Florida Statutes > Chapter 766 > 766.108
Current as of: 2012
Check for updates
2011 version
(1) Within 120 days after the suit is filed, unless such period is extended by mutual agreement of all parties, all parties shall attend in-person mandatory mediation in accordance with s. 44.102 if binding arbitration under s. 766.207 has not been agreed to by the parties. The Florida Rules of Civil Procedure shall apply to mediation held pursuant to this section.
(2)(a) In any action for damages based on personal injury or wrongful death arising out of medical malpractice, whether in tort or contract, the court shall require a settlement conference at least 3 weeks before the date set for trial.
(b) Attorneys who will conduct the trial, parties, and persons with authority to settle shall attend the settlement conference held before the court unless excused by the court for good cause.

Florida Statutes 766.207 – Voluntary binding arbitration of medical negligence claims
Florida Statutes > Chapter 766 > 766.207
Current as of: 2012
Check for updates
2011 version
(1) Voluntary binding arbitration pursuant to this section and ss. 766.208-766.212 shall not apply to rights of action involving the state or its agencies or subdivisions, or the officers, employees, or agents thereof, pursuant to s. 768.28.
(2) Upon the completion of presuit investigation with preliminary reasonable grounds for a medical negligence claim intact, the parties may elect to have damages determined by an arbitration panel. Such election may be initiated by either party by serving a request for voluntary binding arbitration of damages within 90 days after service of the claimant’s notice of intent to initiate litigation upon the defendant. The evidentiary standards for voluntary binding arbitration of medical negligence claims shall be as provided in ss. 120.569(2)(g) and 120.57(1)(c).
(3) Upon receipt of a party’s request for such arbitration, the opposing party may accept the offer of voluntary binding arbitration within 30 days. However, in no event shall the defendant be required to respond to the request for arbitration sooner than 90 days after service of the notice of intent to initiate litigation under s. 766.106. Such acceptance within the time period provided by this subsection shall be a binding commitment to comply with the decision of the arbitration panel. The liability of any insurer shall be subject to any applicable insurance policy limits.
(4) The arbitration panel shall be composed of three arbitrators, one selected by the claimant, one selected by the defendant, and one an administrative law judge furnished by the Division of Administrative Hearings who shall serve as the chief arbitrator. In the event of multiple plaintiffs or multiple defendants, the arbitrator selected by the side with multiple parties shall be the choice of those parties. If the multiple parties cannot reach agreement as to their arbitrator, each of the multiple parties shall submit a nominee, and the director of the Division of Administrative Hearings shall appoint the arbitrator from among such nominees.
(5) The arbitrators shall be independent of all parties, witnesses, and legal counsel, and no officer, director, affiliate, subsidiary, or employee of a party, witness, or legal counsel may serve as an arbitrator in the proceeding.
(6) The rate of compensation for medical negligence claims arbitrators other than the administrative law judge shall be set by the chief judge of the appropriate circuit court by schedule providing for compensation of not less than $250 per day nor more than $750 per day or as agreed by the parties. In setting the schedule, the chief judge shall consider the prevailing rates charged for the delivery of professional services in the community.
(7) 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, subject to the following limitations:
(a) Net economic damages shall be awardable, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity, offset by any collateral source payments.
(b) Noneconomic damages shall be limited to a maximum of $250,000 per incident, and shall be calculated on a percentage basis with respect to capacity to enjoy life, so that a finding that the claimant’s injuries resulted in a 50-percent reduction in his or her capacity to enjoy life would warrant an award of not more than $125,000 noneconomic damages.
(c) Damages for future economic losses shall be awarded to be paid by periodic payments pursuant to s. 766.202(9) and shall be offset by future collateral source payments.
(d) Punitive damages shall not be awarded.
(e) The defendant shall be responsible for the payment of interest on all accrued damages with respect to which interest would be awarded at trial.
(f) The defendant shall pay the claimant’s reasonable attorney’s fees and costs, as determined by the arbitration panel, but in no event more than 15 percent of the award, reduced to present value.
(g) The defendant shall pay all the costs of the arbitration proceeding and the fees of all the arbitrators other than the administrative law judge.
(h) Each defendant who submits to arbitration under this section shall be jointly and severally liable for all damages assessed pursuant to this section.
(i) The defendant’s obligation to pay the claimant’s damages shall be for the purpose of arbitration under this section only. A defendant’s or claimant’s offer to arbitrate shall not be used in evidence or in argument during any subsequent litigation of the claim following the rejection thereof.
(j) The fact of making or accepting an offer to arbitrate shall not be admissible as evidence of liability in any collateral or subsequent proceeding on the claim.
(k) Any offer by a claimant to arbitrate must be made to each defendant against whom the claimant has made a claim. Any offer by a defendant to arbitrate must be made to each claimant who has joined in the notice of intent to initiate litigation, as provided in s. 766.106. A defendant who rejects a claimant’s offer to arbitrate shall be subject to the provisions of s. 766.209(3). A claimant who rejects a defendant’s offer to arbitrate shall be subject to the provisions of s. 766.209(4).
(l) The hearing shall be conducted by all of the arbitrators, but a majority may determine any question of fact and render a final decision. The chief arbitrator shall decide all evidentiary matters. The provisions of this subsection shall not preclude settlement at any time by mutual agreement of the parties.
(8) Any issue between the defendant and the defendant’s insurer or self-insurer as to who shall control the defense of the claim and any responsibility for payment of an arbitration award, shall be determined under existing principles of law; provided that the insurer or self-insurer shall not offer to arbitrate or accept a claimant’s offer to arbitrate without the written consent of the defendant.
(9) The Division of Administrative Hearings is authorized to promulgate rules to effect the orderly and efficient processing of the arbitration procedures of ss. 766.201-766.212.
(10) Rules promulgated by the Division of Administrative Hearings pursuant to this section, s. 120.54, or s. 120.65 may authorize any reasonable sanctions except contempt for violation of the rules of the division or failure to comply with a reasonable order issued by an administrative law judge, which is not under judicial review.

Florida Statutes 766.209 – Effects of failure to offer or accept voluntary binding arbitration
Florida Statutes > Chapter 766 > 766.209
Current as of: 2012
Check for updates
2011 version
(1) A proceeding for voluntary binding arbitration is an alternative to jury trial and shall not supersede the right of any party to a jury trial.
(2) If neither party requests or agrees to voluntary binding arbitration, the claim shall proceed to trial or to any available legal alternative such as offer of and demand for judgment under s. 768.79 or offer of settlement under s. 45.061.
(3) If the defendant refuses a claimant’s offer of voluntary binding arbitration:
(a) The claim shall proceed to trial, and the claimant, upon proving medical negligence, shall be entitled to recover damages subject to the limitations in s. 766.118, prejudgment interest, and reasonable attorney’s fees up to 25 percent of the award reduced to present value.
(b) The claimant’s award at trial shall be reduced by any damages recovered by the claimant from arbitrating codefendants following arbitration.
(4) If the claimant rejects a defendant’s offer to enter voluntary binding arbitration:
(a) The damages awardable at trial shall be limited to net economic damages, plus noneconomic damages not to exceed $350,000 per incident. The Legislature expressly finds that such conditional limit on noneconomic damages is warranted by the claimant’s refusal to accept arbitration, and represents an appropriate balance between the interests of all patients who ultimately pay for medical negligence losses and the interests of those patients who are injured as a result of medical negligence.
(b) Net economic damages reduced to present value shall be awardable, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity, offset by any collateral source payments.
(c) Damages for future economic losses shall be awarded to be paid by periodic payments pursuant to s. 766.202(9), and shall be offset by future collateral source payments.
(5) Jury trial shall proceed in accordance with existing principles of law.

Florida Statutes 44.102 – Court-ordered mediation
Florida Statutes > Chapter 44 > 44.102
Current as of: 2012
Check for updates
2011 version
(1) Court-ordered mediation shall be conducted according to rules of practice and procedure adopted by the Supreme Court.
(2) A court, under rules adopted by the Supreme Court:
(a) Must, upon request of one party, refer to mediation any filed civil action for monetary damages, provided the requesting party is willing and able to pay the costs of the mediation or the costs can be equitably divided between the parties, unless:
1. The action is a landlord and tenant dispute that does not include a claim for personal injury.
2. The action is filed for the purpose of collecting a debt.
3. The action is a claim of medical malpractice.
4. The action is governed by the Florida Small Claims Rules.
5. The court determines that the action is proper for referral to nonbinding arbitration under this chapter.
6. The parties have agreed to binding arbitration.
7. The parties have agreed to an expedited trial pursuant to s. 45.075.
8. The parties have agreed to voluntary trial resolution pursuant to s. 44.104.
(b) May refer to mediation all or any part of a filed civil action for which mediation is not required under this section.
(c) In circuits in which a family mediation program has been established and upon a court finding of a dispute, shall refer to mediation all or part of custody, visitation, or other parental responsibility issues as defined in s. 61.13. Upon motion or request of a party, a court shall not refer any case to mediation if it finds there has been a history of domestic violence that would compromise the mediation process.
(d) In circuits in which a dependency or in need of services mediation program has been established, may refer to mediation all or any portion of a matter relating to dependency or to a child in need of services or a family in need of services.
(3) All written communications in a mediation proceeding, other than an executed settlement agreement, shall be exempt from the requirements of chapter 119.
(4) The chief judge of each judicial circuit shall maintain a list of mediators who have been certified by the Supreme Court and who have registered for appointment in that circuit.
(a) Whenever possible, qualified individuals who have volunteered their time to serve as mediators shall be appointed. If a mediation program is funded pursuant to s. 44.108, volunteer mediators shall be entitled to reimbursement pursuant to s. 112.061 for all actual expenses necessitated by service as a mediator.
(b) Non volunteer mediators shall be compensated according to rules adopted by the Supreme Court. If a mediation program is funded pursuant to s. 44.108, a mediator may be compensated by the county or by the parties.
(5)(a) When an action is referred to mediation by court order, the time periods for responding to an offer of settlement pursuant to s. 45.061, or to an offer or demand for judgment pursuant to s. 768.79, respectively, shall be tolled until:
1. An impasse has been declared by the mediator; or
2. The mediator has reported to the court that no agreement was reached.
(b) Sections 45.061 and 768.79 notwithstanding, an offer of settlement or an offer or demand for judgment may be made at any time after an impasse has been declared by the mediator, or the mediator has reported that no agreement was reached. An offer is deemed rejected as of commencement of trial.

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