Florida Statute 766.209 - Full Text and Legal Analysis

The 2025 Florida Statutes

Title XLV
TORTS

Chapter 766
MEDICAL MALPRACTICE AND RELATED MATTERS

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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.

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F.S. 766.209 on CourtListener

Amendments to 766.209

Annotations, Discussions, Cases:

Cases Citing Statute 766.209

Total Results: 19

St. Mary's Hospital, Inc. v. Phillipe

769 So. 2d 961, 2000 WL 854258

Supreme Court of Florida | Filed: Jun 29, 2000 | Docket: 2517725

Cited 39 times | Published

arbitrate shall be subject to the provisions of section 766.209(4)," which limits the noneconomic damages to

University of Miami v. Echarte

618 So. 2d 189, 1993 WL 152668

Supreme Court of Florida | Filed: May 13, 1993 | Docket: 405771

Cited 33 times | Published

rejects a claimant's offer to arbitrate, then section 766.209(3), Florida Statutes (Supp. 1988), applies;

Cooper v. Gulf Breeze Hospital, Inc.

839 F. Supp. 1538, 1993 U.S. Dist. LEXIS 19516, 1993 WL 512092

District Court, N.D. Florida | Filed: Nov 30, 1993 | Docket: 2038372

Cited 14 times | Published

$350,000 per incident of malpractice. Id. at § 766.209. [6] Both the Reid and Power courts were interpreting

Raphael v. Shecter

18 So. 3d 1152, 2009 Fla. App. LEXIS 14084, 2009 WL 3018157

District Court of Appeal of Florida | Filed: Sep 23, 2009 | Docket: 83627

Cited 12 times | Published

medical malpractice action was governed by section 766.209(2), Florida Statutes (2002), which stated that

Graber v. CLARENDON NAT. INS. CO.

819 So. 2d 840, 2002 WL 985371

District Court of Appeal of Florida | Filed: May 15, 2002 | Docket: 2537778

Cited 12 times | Published

2000). Prejudgment interest is awarded under section 766.209, Florida Statutes, "[i]f the defendant refuses

Advisory Op. to Atty. Gen. Re Comp. Amend.

880 So. 2d 675

Supreme Court of Florida | Filed: Jul 15, 2004 | Docket: 1689296

Cited 10 times | Published

capped not to exceed $350,000 per incident. See § 766.209, Fla. Stat. (2003). If the parties proceed to

Tetrault v. Fairchild

799 So. 2d 226, 2001 WL 844464

District Court of Appeal of Florida | Filed: Jul 24, 2001 | Docket: 1681671

Cited 10 times | Published

has adopted the offer of judgment standard. See § 766.209(2), Fla. Stat. (2000). Under the statutory provision

Bombalier v. Lifemark Hosp. of Fla.

661 So. 2d 849, 1995 WL 521222

District Court of Appeal of Florida | Filed: Sep 6, 1995 | Docket: 1526304

Cited 7 times | Published

incident" cap on non-economic damages contained in section 766.209(4)(a), Florida Statutes (1993). 9. Based on

Franks v. Bowers

116 So. 3d 1240, 38 Fla. L. Weekly Supp. 416, 2013 WL 3064807, 2013 Fla. LEXIS 1222

Supreme Court of Florida | Filed: Jun 20, 2013 | Docket: 60232304

Cited 6 times | Published

in accordance with existing principles of law. § 766.209, Fla. Stat. (2008). We previously discussed, in

University of Miami v. Echarte

585 So. 2d 293, 1991 WL 98016

District Court of Appeal of Florida | Filed: Jun 11, 1991 | Docket: 369293

Cited 4 times | Published

claimant's noneconomic damages at $250,000.[15] Section 766.209 states the consequences of failure to request

Allstate Insurance Company v. Orthopedic Specialists, etc.

212 So. 3d 973, 42 Fla. L. Weekly Supp. 38, 2017 WL 372092, 2017 Fla. LEXIS 194

Supreme Court of Florida | Filed: Jan 26, 2017 | Docket: 4574079

Cited 3 times | Published

arbitrate shall be subject to the provisions of section 766.209(4),’ which limits the non-economic damages

Estate of Michelle Evette McCall v. United States

134 So. 3d 894, 39 Fla. L. Weekly Supp. 104, 2014 WL 959180, 2014 Fla. LEXIS 933

Supreme Court of Florida | Filed: Mar 13, 2014 | Docket: 402403

Cited 1 times | Published

defendant’s offer to arbitrate. Id. (describing section 766.209(4), Fla. Stat. (Supp.1988)). Thereafter, in

Barlow v. North Okaloosa Medical Center

877 So. 2d 655, 29 Fla. L. Weekly Supp. 64, 2004 Fla. LEXIS 185, 2004 WL 252036

Supreme Court of Florida | Filed: Feb 12, 2004 | Docket: 1684495

Cited 1 times | Published

scenarios for the award of damages provided for in section 766.209 consistent.[8] It is also the result after

HEALTHCARE UNDERWRITERS GROUP, INC., AMARNATH VEDERE, M.D. and CARDIOLOGY PARTNERS, P.L. v. DEBORAH SANFORD, as Personal Representative of the ESTATE OF GERALD L. SANFORD

District Court of Appeal of Florida | Filed: Mar 30, 2022 | Docket: 63198516

Published

sought pre-judgment interest, allowed under section 766.209. The parties disagreed as to the date from

Parham v. FLORIDA HEALTH SCIENCES CENTER, INC.

35 So. 3d 920, 2010 Fla. App. LEXIS 4183, 2010 WL 1222925

District Court of Appeal of Florida | Filed: Mar 31, 2010 | Docket: 1645958

Published

liability for noneconomic damages contained in section 766.209(4), Florida Statutes (2003). The trial court

COLUMBIA/JFK MEDICAL CTR. v. Sangounchitte

977 So. 2d 639

District Court of Appeal of Florida | Filed: Feb 13, 2008 | Docket: 1529636

Published

court erred in awarding attorney's fees under section 766.209, Florida Statutes, which provides for voluntary

Advisory Opinion to the Attorney General re the Medical Liability Claimant's Compensation Amendment

880 So. 2d 675, 29 Fla. L. Weekly Supp. 395, 2004 Fla. LEXIS 1008

Supreme Court of Florida | Filed: Jul 15, 2004 | Docket: 64832263

Published

capped not to exceed $350,000 per incident. See § 766.209, Fla. Stat. (2003). If the parties proceed to

Doig v. Chester

776 So. 2d 1043, 2001 WL 85535

District Court of Appeal of Florida | Filed: Feb 2, 2001 | Docket: 421854

Published

jury verdict on non-economic damages. See Section 766.209(2). If both parties agree to arbitration, there

Platman v. Holmes Regional Medical Center, Inc.

683 So. 2d 671, 1996 Fla. App. LEXIS 12785, 1996 WL 697824

District Court of Appeal of Florida | Filed: Dec 6, 1996 | Docket: 64769383

Published

any time by mutual agreement of the parties. Section 766.209 contains sanctions for the party who rejects

This Florida statute resource is curated by Graham W. Syfert, Esq., a Jacksonville, Florida personal injury and workers' compensation attorney. Attorney Syfert regularly works with Chapter 766 in the context of medical malpractice litigation and represents clients throughout Northeast Florida. For legal consultation, call 904-383-7448.