766.209
Effects of failure to offer or accept voluntary binding arbitration.
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766.209 Effects of failure to offer or accept voluntary binding arbitration.—
(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.
History.—s. 56, ch. 88-1; s. 32, ch. 88-277; s. 63, ch. 2003-416; s. 156, ch. 2004-5.
Notes of Decisions
Cited in 20
cases (1 in the last 5 years), 1990–2022 · leading case: University of Miami v. Echarte
University of Miami v. Echarte (1993)
“207(7)(k) provides that if a defendant rejects a claimant's offer to arbitrate, then section 766.209(3), Florida Statutes (Supp.”
Raphael v. Shecter (2009)
“Section 766.209, Florida Statutes (2002), provided as follows: (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.”
Allstate Insurance Company v. Orthopedic Specialists, etc. (2017)
“207(7)(k) because ‘a claimant who rejects a defendant’s offer to arbitrate shall be subject to the provisions of section 766.209(4),’ which limits the noneconomic damages to be awardable at trial to 0,000.”
Graber v. CLARENDON NAT. INS. CO. (2002)
“Prejudgment interest is awarded under section 766.209, Florida Statutes, "[i]f the defendant refuses a claimant's offer of voluntary arbitration.”
Parham v. FLORIDA HEALTH SCIENCES CENTER, INC. (2010)
“209 appears to create sanctions for the failure of a litigant to cooperate with the other party by engaging in binding arbitration.”
Franks v. Bowers (2013)
“§ 766.209, Fla. Stat. (2008). We previously discussed, in depth, the intent and purpose of these provisions, stating: The Legislature enacted the statutory scheme at issue following the recommendations and study made by the Academic Task Force for Review of the Insurance and…”
Estate of Michelle Evette McCall v. United States (2014)
“(describing section 766.209(4), Fla. Stat. (Supp. 1988)).”
Bombalier v. Lifemark Hosp. of Fla. (1995)
“Fla. Stat. § 766.209 (4)(a). The Bombaliers appeal from this order contending that the trial court erred by ruling that the parties shall not proceed to arbitration, but rather, to trial.”
Barlow v. North Okaloosa Medical Center (2004)
“[8] Four relevant scenarios are provided for in section 766.209, Florida Statutes: 1. If neither the claimant nor the defendant requests or agrees to voluntary binding arbitration, the claim proceeds to trial under the Wrongful Death Act.”
University of Miami v. Echarte (1991)
“[3] Section 766.209, Florida Statutes (Supp. 1988), provides: Effects of failure to offer or accept voluntary binding arbitration.”
St. Mary's Hospital, Inc. v. Phillipe (2000)
“" This economic damages provision is replicated under section 766.209, which applies when a claimant rejects an offer to arbitrate.”
Tetrault v. Fairchild (2001)
“See § 766.209(2), Fla. Stat. (2000). Under the statutory provision considered in Rowe , there were no additional, specific factors to consider.”
— 766.209(2) — 4 cases
Raphael v. Shecter (2009)
“Section 766.209, Florida Statutes (2002), provided as follows: (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.”
Tetrault v. Fairchild (2001)
“See § 766.209(2), Fla. Stat. (2000). Under the statutory provision considered in Rowe , there were no additional, specific factors to consider.”
Barlow v. North Okaloosa Medical Center (2004)
“[8] Four relevant scenarios are provided for in section 766.209, Florida Statutes: 1. If neither the claimant nor the defendant requests or agrees to voluntary binding arbitration, the claim proceeds to trial under the Wrongful Death Act.”
Doig v. Chester (2001)
— 766.209(3) — 2 cases
University of Miami v. Echarte (1993)
“207(7)(k) provides that if a defendant rejects a claimant's offer to arbitrate, then section 766.209(3), Florida Statutes (Supp.”
Raphael v. Shecter (2009)
“Section 766.209, Florida Statutes (2002), provided as follows: (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.”
— 766.209(3)(a) — 3 cases
Barlow v. North Okaloosa Medical Center (2004)
“[8] Four relevant scenarios are provided for in section 766.209, Florida Statutes: 1. If neither the claimant nor the defendant requests or agrees to voluntary binding arbitration, the claim proceeds to trial under the Wrongful Death Act.”
University of Miami v. Echarte (1991)
“[3] Section 766.209, Florida Statutes (Supp. 1988), provides: Effects of failure to offer or accept voluntary binding arbitration.”
— 766.209(4) — 7 cases
Allstate Insurance Company v. Orthopedic Specialists, etc. (2017)
“207(7)(k) because ‘a claimant who rejects a defendant’s offer to arbitrate shall be subject to the provisions of section 766.209(4),’ which limits the noneconomic damages to be awardable at trial to 0,000.”
University of Miami v. Echarte (1993)
“207(7)(k) provides that if a defendant rejects a claimant's offer to arbitrate, then section 766.209(3), Florida Statutes (Supp.”
Estate of Michelle Evette McCall v. United States (2014)
“(describing section 766.209(4), Fla. Stat. (Supp. 1988)).”
Parham v. FLORIDA HEALTH SCIENCES CENTER, INC. (2010)
“209 appears to create sanctions for the failure of a litigant to cooperate with the other party by engaging in binding arbitration.”
St. Mary's Hospital, Inc. v. Phillipe (2000)
“" This economic damages provision is replicated under section 766.209, which applies when a claimant rejects an offer to arbitrate.”
— 766.209(4)(a) — 7 cases
Bombalier v. Lifemark Hosp. of Fla. (1995)
“Fla. Stat. § 766.209 (4)(a). The Bombaliers appeal from this order contending that the trial court erred by ruling that the parties shall not proceed to arbitration, but rather, to trial.”
University of Miami v. Echarte (1993)
“207(7)(k) provides that if a defendant rejects a claimant's offer to arbitrate, then section 766.209(3), Florida Statutes (Supp.”
Barlow v. North Okaloosa Medical Center (2004)
“[8] Four relevant scenarios are provided for in section 766.209, Florida Statutes: 1. If neither the claimant nor the defendant requests or agrees to voluntary binding arbitration, the claim proceeds to trial under the Wrongful Death Act.”
University of Miami v. Echarte (1991)
“[3] Section 766.209, Florida Statutes (Supp. 1988), provides: Effects of failure to offer or accept voluntary binding arbitration.”
Doig v. Chester (2001)
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