To amend and update the procedural rules applicable to medical malpractice arbitrations for which administrative law judges serve as chief arbitrator, as necessary to improve the arbitration process.

 

DEPARTMENT OF MANAGEMENT SERVICES

Division of Administrative Hearings

RULE NOS.:RULE TITLES:

60Q-3.001Applicability

60Q-3.002Computation of Time

60Q-3.004Filing and Service

60Q-3.007Assessment Arbitration Panels

60Q-3.009Disqualification of Arbitrators

60Q-3.0111Motions

60Q-3.012Subpoenas

60Q-3.017Venue

60Q-3.018Notice of Assessment Arbitration

60Q-3.019Continuances

60Q-3.022Assessment Arbitration Pre-Hearing Requirements

60Q-3.024Arbitration Award

60Q-3.029Notice of Allocation Arbitration

60Q-3.031Allocation Arbitration Pre-Hearing Requirements

60Q-3.032Allocation of Financial Responsibility

PURPOSE AND EFFECT: To amend and update the procedural rules applicable to medical malpractice arbitrations for which administrative law judges serve as chief arbitrator, as necessary to improve the arbitration process.

SUMMARY: These amendments serve to update the existing rules related to medical malpractice arbitrations to reflect current filing practices and to improve the arbitration process.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: These rules are procedural rules only and do not have any regulatory effect.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 766.207(9), (10)

LAW IMPLEMENTED: 766.201-.212

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 2 days before the workshop/meeting by contacting: Lisa Shearer Nelson [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Lisa Shearer Nelson at [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

60Q-3.001 Applicability.

(1) These rules shall apply to all voluntary binding arbitration proceedings of medical negligence claims initiated in accordance with Ssections 766.201 through 766.212, Florida Statutes, to determine and to allocate the amount of damages. All references to DOAH are to the Division of Administrative Hearings.

(2) No change.

Specific Rulemaking Authority 766.207(9), (10) FS. Law Implemented 766.201-.212 FS. History–New 9-6-88, Formerly 22I-7.001, Amended 6-27-00, [Date].

60Q-3.002 Computation of Time.

In computing any period of time prescribed or allowed by these rules, by order of the chief arbitrator, or by an applicable statute, the day of the act from which the designated period of time begins to run shall not be included. The last day of the period shall be included unless it is a Saturday, Sunday or legal holiday in which event the period shall run until the end of the next day which is not a Saturday, Sunday or legal holiday or any day when the clerk’s office at DOAH is closed. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. As used in these rules, legal holiday means those days designated in Ssection 110.117, Florida Statutes. Whenever a party is required or permitted to do an act within some prescribed time after service of a document, and the document is served by U.S. mail, five days shall be added to the prescribed period. One business day shall be added to the prescribed period when service is made by overnight courier. No additional time shall be added to the prescribed period if service is made by hand, facsimile telephone transmission, or other electronic transmission.

Specific Rulemaking Authority 766.207(9), (10) FS. Law Implemented 766.201-.212 FS. History–New 9-6-88, Formerly 22I-7.002, Amended 6-27-00, [Date].

60Q-3.004 Filing and Service.

(1) In construing these rules, any applicable statute, any order of an arbitration panel, or any order of the chief arbitrator, filing means receipt by the Office of the Clerk at DOAH during normal business hours or by the chief arbitrator during the course of a hearing.

(2) No change

(3) All pleadings or other documents tendered for filing shall be accompanied by a copy of each pleading or other document to be filed.

(4) through (7) renumbered as (3) through (6).

(7) (8) A party who files a document by electronic transmission represents that the original physically-signed document will be retained by that party for the duration of the proceeding and any subsequent appeal. The party shall produce it upon the request of any other party or the Division.  Any document filed with DOAH by a party represented by an attorney shall be filed by electronic means through DOAH’s website in compliance with section 120.52(5), Florida Statutes. Any document filed with DOAH by a party not represented by an attorney shall, whenever possible, be filed by electronic means through the division’s website.

(9) Any party who elects to files a document by electronic transmission is responsible for any delay, disruption, or interruption of the electronic signals and accepts the full risk that the document may not be properly filed as a result.

(8)(10) The filing date for an electronically-transmitted document is the date the Division DOAH receives the complete document.

Specific Rulemaking Authority 766.207(9), (10) FS. Law Implemented 120.52(5); 766.201-.212 FS. History–New 9-6-88, Formerly 22I-7.004, Amended 6-27-00, [Date].

60Q-3.007 Assessment Arbitration Panels.

(1) When the Director of DOAH determines that an offer to arbitrate has been made and accepted in substantial conformity with Rule 60Q-3.005, Florida Administrative Code, the Director shall appoint an Administrative Law Judge as chief arbitrator of the assessment arbitration panel.

(2) No change.

(3) Within 20 days of the order appointing the chief arbitrator, the parties shall may select arbitrators and alternates by filing their names, addresses and telephone numbers, along with certificates in the form set out in this rule, executed by the arbitrators and alternates named. The claimant or claimants shall select an arbitrator and up to two alternates, and the defendant or defendants shall select a different arbitrator and up to two alternates. Each party must submit at least one alternate.

(4) through (6) No change.

(7) If a party entitled to select an arbitrator fails to do so and does not demonstrate good cause for failing to timely submit arbitrators for confirmation, the Director may shall select an additional arbitrator from the alternates submitted by any other party.

(8)  through  (9) No change.

Specific Rulemaking Authority 766.207(9), (10) FS. Law Implemented 766.201-.212 FS. History–New 9-6-88, Amended 5-7-90, Formerly 22I-7.007, Amended 6-27-00, [Date].

60Q-3.009 Disqualification of Arbitrators.

(1) Unless good cause is shown, motions for disqualification of arbitrators shall be filed within 15 days from the selection or appointment of that arbitrator. At least one affidavit shall accompany the motion and state particular grounds. A motion to disqualify the chief arbitrator shall be limited to those grounds for which a judge may be disqualified. Any party filing a motion for disqualification shall state all grounds for disqualification in one motion, if known to, or discoverable with reasonable diligence by, the movant.

(2) No change.

Specific Rulemaking Authority 766.207(9), (10) FS. Law Implemented 766.201-.212 FS. History–New 9-6-88, Formerly 22I-7.009, Amended 6-27-00, [Date].

60Q-3.0111 Motions.

(1) No change.

(2) Motions shall include a statement that the movant has conferred with all other parties of record and shall state as to each party whether the party has any objection to the motion. Any statement that the movant was unable to contact the other party or parties before filing the motion must provide information regarding the date(s) and method(s) by which contact was attempted.

(3) Oral argument on motions is not a matter of right, but may be allowed by the chief arbitrator if requested by the movant at the time the motion is filed, or by any other party within seven days of the filing of the motion., or if the chief arbitrator determines that oral argument is required to resolve the issue(s) raised in the motion.

Rulemaking Authority 766.207(9), (10) FS. Law Implemented 766.201 -766.212 FS. History–New 6-27-00, [Date].

60Q-3.012 Subpoenas.

(1) The chief arbitrator shall issue subpoenas on forms supplied by the Division DOAH through the eALJ portal. Subpoenas shall issue in blank except for the style of the case, the case number, the name, address and telephone number of the attorney or party requesting the subpoena, and the chief arbitrator’s signature, which may be by facsimile signature.

(2) through (4) No change. 

Specific Rulemaking Authority 766.207(9),(10) FS. Law Implemented 766.201-.212 FS. History–New 9-6-88, Formerly 22I-7.012, Amended 6-27-00, [Date].

60Q-3.017 Venue.

Unless all parties otherwise agree, when an arbitration is conducted live, the arbitration shall take place in the county in which the medical incident occurred or in which a defendant who lives in Florida resides.

Specific Rulemaking Authority 766.207(9),(10) FS. Law Implemented 766.201-.212 FS. History–New 9-6-88, Formerly 22I-7.017, Amended 6-27-00, [Date].

60Q-3.018 Notice of Assessment Arbitration.

(1) No change.

(2) In the event a motion for continuance is granted, the chief arbitrator shall issue a new notice of hearing set a different time and place for assessment arbitration, but need not give 90 days’ notice of the rescheduled date, time, and place new time .

(3) No change.

Specific Rulemaking Authority 766.207(9), (10) FS. Law Implemented 766.201-.212 FS. History–New 9-6-88, Formerly 22I-7.018, Amended 6-27-00, [Date].

60Q-3.019 Continuances.

(1) The chief arbitrator may grant a continuance for good cause shown. Except in cases of emergency, all requests for postponement of an arbitration hearing shall be made by motion for continuance filed within at least 20 10 days prior to the scheduled commencement of service of the notice of the arbitration hearing.

(2) through (3) No change.

Specific Rulemaking Authority 766.207(9), (10) FS. Law Implemented 766.201-.212 FS. History–New 9-6-88, Formerly 22I-7.019, Amended 6-27-00, [Date].

60Q-3.022 Assessment Arbitration Pre-Hearing Requirements.

(1) Mediation is encouraged but not required for arbitration. Should the parties choose to mediate, mediation shall be conducted at least ten days prior to the date that the arbitration hearing is scheduled to commence.

(2) The parties shall notify the chief arbitrator of the results of any mediation no later than three days after the mediation is concluded, or, in any event, not less than five days prior to the commencement of the arbitration.

(3) All potential witnesses’ names and addresses must be disclosed to all other parties and filed with the Division at least 45 days prior to the arbitration hearing or 45 days before any re-scheduled arbitration hearing.

(4) All exhibits intended to be introduced into evidence must be exchanged no later than 20 days prior to the scheduled arbitration hearing.

(1) (5)No later than 15 days before the assessment arbitration hearing, or by such other time as the chief arbitrator orders, the parties shall file a pre-hearing stipulation, which shall contain:

(a) A brief general statement of each party’s position, including a statement regarding the categories of damages at issue, and any damages that have been stipulated;

(b) through (h) No change.

(i) A statement of whether the parties have agreed to the arbitrators’ fee, and if so, the amount of the fee;

(i) through (k) renumbered as (j) through (l).

(2) (6) No later than 10 days before the assessment arbitration hearing, the parties, or their attorneys, shall meet to discuss the possibility of amicable resolution of the proceeding.

(7) All proposed exhibits must be provided to the arbitrators simulataneously, at the time ordered by the chief arbitrator. In the event that the exhibits are to be delivered in advance for hearings conducted remotely, the parties shall file a Notice of Filing indicating when the proposed exhibits were provided.

Specific Rulemaking Authority 766.207(9), (10) FS. Law Implemented 766.201-.212 FS. History–New 9-6-88, Formerly 22I-7.022, Amended 6-27-00, [Date].

60Q-3.024 Arbitration Award.

(1) Unless a majority of the assessment arbitration panel unanimously decides to defer entry of the arbitration award, the arbitration award shall be announced on the record after the conclusion of the evidence.

(2) No change.

Specific Rulemaking Authority 766.207(9), (10) FS. Law Implemented 766.201-.212 FS. History–New 9-6-88, Formerly 22I-7.024, Amended 6-27-00, [Date].

60Q-3.029 Notice of Allocation Arbitration.

(1) The chief arbitrator shall set the time and place for allocation arbitration and give the parties at least 30 days’ notice.

(2) In the event a motion for continuance is granted, the chief arbitrator shall issue a new notice of hearing set a different time and place for allocation arbitration, but need not give 30 days’ notice of the rescheduled date, time, and place new time .

 

Specific Rulemaking Authority 766.207(9),(10) FS. Law Implemented 766.201-.212 FS. History–New 9-6-88, Formerly 22I-7.029, Amended 6-27-00, [Date].

 

60Q-3.031 Allocation Arbitration Pre-Hearing Requirements.

(1) No later than 10 days before the allocation arbitration hearing, or by such other time as the chief arbitrator orders, the arbitrating defendants shall file a pre-hearing stipulation, which shall contain:

(a) through (i) No change.

(j) A statement of whether the parties have agreed to the arbitrators’ fee, and if so, the amount of the fee;

(j) through (k) renumbered as (k) through (l).

(j) (k) A list of all motions or other matters which require action by the chief arbitrator; and

(k)(l) The signature of counsel for all parties represented by counsel and of all parties not represented by counsel.

(2) No later than 5 days before the allocation arbitration hearing, the parties, or their attorneys, shall meet to discuss the possibility of amicable resolution of the proceeding.

Specific Rulemaking Authority 766.207(9),(10) FS. Law Implemented 766.201-.212 FS. History–New 9-6-88, Formerly 22I-7.031, Amended 6-27-00, [Date].

60Q-3.032 Allocation of Financial Responsibility.

(1) Unless a majority of the allocation arbitration panel unanimously decides to defer entry of the order allocating financial responsibility, the order shall be announced on the record after the conclusion of the evidence.

(2) through (3) No change

Specific Rulemaking Authority 766.207(9), (10) FS. Law Implemented 766.201-.212 FS. History–New 9-6-88, Formerly 22I-7.032, Amended 6-27-00, [Date].

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Lisa Shearer Nelson

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Pete Antonacci

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: 6/1/2021

DATE NOTICE OF RULE DEVELOPMENT PUBLISHED IN FAR: 6/10/2021