10-3078 DONNA FRANKS, as Personal Representative of the Estate of JOSEPH JAMES FRANKS, SR., Deceased, v. GARY JOHN BOWERS, M.D., BENJAMIN M. PIPERNO, III, M.D., and NORTH FLORIDA SURGEONS, P.A., a Flo

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State: Florida

Court: Florida First District Court

Docket No: 10-3078

Case Date: 03/16/2011

Preview:DONNA FRANKS, as Personal Representative of the Estate of JOSEPH JAMES FRANKS, SR., Deceased, Appellant, v. GARY JOHN BOWERS, M.D., BENJAMIN M. PIPERNO, III, M.D., and NORTH FLORIDA SURGEONS, P.A., a Florida Corporation, Appellees. _____________________________/ Opinion filed March 16, 2011.

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D10-3078

An appeal from the Circuit Court for Duval County. James H. Daniel, Judge. Thomas S. Edwards, Jr., Jennifer K. Millis, and Eric C. Ragatz, of Edwards & Ragatz, P.A., Jacksonville, for Appellant. Kelly B. Mathis and Laurie M. Lee, of Mathis & Murphy, Jacksonville, for Appellees. Bryan S. Gowdy, of Creed & Gowdy, P.A., Jacksonville, for the Florida Justice Association, amicus curiae. Andrew S. Bolin, of Beytin, Bolin, McLaughlin & Willers, P.A., Tampa, for the Florida Defense Lawyers Association, amicus curiae.

CLARK, J. The appellant challenges an order by which the circuit court stayed the

appellant's wrongful death and medical negligence action, and compelled arbitration pursuant to a doctor-patient agreement. In contesting that ruling, the appellant contends that the contractual agreement was misconstrued, that it is otherwise void as being contrary to public policy, and unconscionable. However, the appellant has not established any such infirmity with regard to the contractual provisions, or any error in the court's enforcement of the contractual agreement. The appellant, as the personal representative of the estate of Joseph Franks, sued the appellees for wrongful death and medical negligence when Mr. Franks died after receiving medical care from the appellees. In obtaining such care, Mr. Franks had signed a document entitled "North Florida Surgeons Financial Agreement" which contained a provision whereby the doctor and patient agreed that all disputes, including "any negligence claim relating to the diagnosis, treatment, or care of Patient . . . shall be resolved by arbitration . . . ." The agreement called for the arbitration to be "in lieu and instead of any trial by Judge or Jury." The agreement further provided a limitation on non-economic damages, and required compliance with the pre-suit notice requirements in Chapter 766, Florida Statutes. In response to the appellant's lawsuit, the appellees sought to compel arbitration under the terms of the Financial Agreement. The appellant replied to that motion by asserting that the Financial Agreement's invocation of the pre-suit 2

notice provisions in Chapter 766 also invoked the arbitration provisions in that chapter, with such arbitration being voluntary rather than mandatory. The circuit court rejected that argument, ruling instead that the mandatory arbitration clause in the Financial Agreement was controlling. Although the appellant now argues that the court misconstrued the Financial Agreement in that regard, the court properly construed and applied the arbitration clause. The appellant contends that the arbitration clause in the Financial Agreement is contrary to the public policy reflected in Chapter 766, which contains a somewhat different arbitration scheme for claims of medical negligence. Among other differences, for the voluntary arbitration in Chapter 766 to pertain, the defendants must not contest liability and the arbitration would address the amount of damages, with certain specified evidentiary standards, and a limitation on the amount of non-economic damages that could be awarded in arbitration, and another limitation if the claim proceeds to trial. 766.207(2); 766.207(7); 766.118(2), Fla. Stat. See

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