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Santiago, et al. v. Marisa Baker, M.D., et al., Case No. 2D13-4088 (2nd DCA)

Santiago involves a wrongful birth case which was dismissed by the trial court based on an arbitration provision signed at the time the mother became a patient of the defendants. The child suffers from severe birth defects caused by a drug that the mother resumed taking to treat a chronic disease. When the mother became a patient of the defendant, she informed the medical staff that her and her husband planned to have a second child. During two visits days after the mother learned from an over-the-counter pregnancy test that she was pregnant, the defendant advised her that the pregnancy was not viable. The defendant recommended dilation and curettage, which the mother declined. The mother believed that the fetus would spontaneously pass, and therefore, resumed taking the medication. The mother also alleged to be unaware of the possible adverse effects the medication would have on the fetus. The child was later born, and the parents brought suit.

When the mother first became a patient of the defendants, she signed an arbitration agreement. The trial court granted the defendants motion to compel arbitration pursuant to the agreement, and the 2nd DCA affirmed. The 2nd DCA noted, though, that the parents did raise the issue of whether and to what extent a parent or legal guardian could bind a minor – in this case an unconceived child at the time of the agreement – to arbitration. The 2nd DCA also noted that there was no constitutional challenge to the arbitration agreement, nor did the father argue on appeal the extent to which he may be bound by the arbitration agreement, which he did not sign.

Rather, the parents argued that the arbitration agreement violated the State public policy reflected in the medical malpractice statutes. The parents asserted that the medical malpractice statutes require resolution of claims exclusively through statutory binding arbitration or by trial. The 2nd DCA disagreed. The 2nd DCA found that the mother willingly signed the arbitration agreement, that there was no evidence of duress or coercion, and there was no evidence that the agreement was procedurally or substantively unconscionable. The 2nd DCA noted that the agreement clearly specified that the parties waived the right to a jury trial and consented to arbitration. The 2nd DCA rejected the parents’ interpretation of Franks v. Bowers, which the parents argued stands for the proposition that if neither party to a medical malpractice claim seeks arbitration under Fla. Stat. 766.207, then the claim cannot be arbitrated at all. As the 2nd DCA noted, the Florida Supreme Court in Bowers provided that any agreement that seeks to enjoy the benefits of the arbitration provision under the statutory scheme must necessarily adopt all of its provisions. The 2nd DCA found that Bowers did not apply because none of the parties to the Santiago case invoked the statutory arbitration scheme.

The 2nd DCA stated that Bowers did not hold that all private arbitration agreements are void as against public policy, and noted that the statutory scheme does not prohibit parties from arbitrating their claims by private agreement outside the statutory scheme. Therefore, the 2nd DCA affirmed the trial court’s granting of the defendants’ motion to compel arbitration. This decision is critical because it upholds the enforcement of an arbitration provision between a patient and a healthcare provider, and sets forth parameters to the Bowers decision.

In a concurring opinion that was critical of the decision, Judge Altenbernd noted that on “July 4, 1776, in deciding to declare independence from a king who was regarded as a despot, Thomas Jefferson and John Adams provided a list of grievances that justified the revolutionary decision. One of those grievances stated: “For depriving us in many cases, of the benefits of Trial by Jury.” This comes from paragraph 20 of the Declaration of Independence. Judge Altenbernd further noted that the federal constitution protects trial by jury in Amendment VII, and Florida went further in adopting Art. I, Section 22 of its Constitution, which reads, “The right of trial by jury shall be secure to all and remain inviolate.” Judge Altenbernd acknowledged that a person can waive a constitutional right only by a knowing and intelligent decision. Judge Altenbernd then states, “But somehow in deference to the supposed economic efficiency of arbitration, our society seems to be more and more willing to allow the use of form contracts, not subject to negotiation, that force patients, the elderly, the marginally literate, and ordinary consumers of everyday products to waive their constitutional right to trial by jury in common law cases – because the common law cause of action even exists – in order to receive basic goods and services.” Judge Altenbernd noted that in Santiago, an arbitration provision is being enforced against the father, someone who didn’t even sign the agreement. The father has a claim as a parent and natural guardian of the child, and Judge Altenbernd states that “[b]y voting to enforce this agreement, I cannot help feeling that I am violating his constitutional right to a trial by jury.” As Judge Altenbernd states, “juries serve as a check upon the concentration of power in judges and other members of the political and economic elite.” The judge ruled as he did because he agreed the constitutional challenge was not preserved for appeal; however, noting that the child somehow waived an inviolate right to trial by jury before conception and before the infant had a cause of action, Judge Altenbernd states that he “obey[s] what appears to be the rule of law without any enthusiasm and with a fear that [he has] disappointed Thomas Jefferson and John Adams.”

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