The Week In Torts – Cases from October 13, 2023
Arbitration strikes again
FLORIDA LAW WEEKLY
VOLUME 48, NUMBER 41
CASES FROM THE WEEK OF October 13, 2023
COURT AFFIRMS TRIAL COURT’S DECISION TO ENFORCE ARBITRATION AGREEMENT IN CASE WHERE PATIENT HAD COSMETIC SURGERY AND DISCOVERED IMAGES OF HER NAKED BODY ON THE MEDICAL GROUP’S INSTAGRAM PAGE AFTER SURGERY
M.P. v. Guiribitey Cosmetic and Beauty Institute, 48 Fla. L. Weekly D1947 (Oct. 4, 2023):
The plaintiff scheduled elective outpatient cosmetic surgery. Weeks before the surgery she received and paid an invoice for a non-refundable deposit. The invoice contained choice of law and venue provisions, noting it was “subject to any dispute resolution agreement between the parties.”
On the eve of the surgery, the plaintiff received a 49-page personalized surgical packet. Among the documents were two forms: 1) a consent for the taking and publication of photographs; and 2) an arbitration agreement.
The plaintiff signed the forms and did not avail herself of the ability to decline the scope of the consent for the use of the photographs.
After the surgery, the plaintiff discovered images of her nude body on Instagram and filed a six-count complaint for commercial misappropriation, breach of fiduciary duty and invasion of privacy. The defendants moved to compel arbitration. The plaintiff argued that the last-minute presentation of the arbitration agreement (eve of surgery), the non-refundable nature of the deposit, and a judicial carve out for fee collection claims rendered the agreement unconscionable and was signed as the product of duress. (The other carve out was for medical negligence claims).
To establish unconscionability, the plaintiff must establish both procedural and substantive unconscionability. The procedural prong focuses on the way the contract was entered, and asks whether given the totality of the circumstances, the parties had a meaningful choice to refuse the contract terms.
The substantive prong relates to the reasonableness of the contractual terms, and whether they are so outrageously unfair as to shock the judicial conscience. To evaluate that prong, courts consider whether the terms conflict with public interest or policy which occurs when the agreement is “improvident, oppressive, or totally one-sided.”
The plaintiff asserted that the contract was presented to her on a “take it or leave it” basis. However, the court noted that an adhesionary nature of a contract does not necessarily lead to a finding of unconscionability.
Here the arbitration clause was pointed out in the table of contents to the packet, and contained numerous sub-headings to clarify its expansive reach.
The plaintiff argued that because the agreement excluded collections from the ambit of arbitration, that rendered it unconscionable. The court noted that many arbitration clauses exclude collections because they are routine matters and requiring arbitration could add on to an additional, inefficient step to the process.
The court also rejected the plaintiff’s duress claim, since she certified that the agreement was of her own free will and not signed under duress and was also alerted to the possibility of alternate dispute resolution before she tendered her deposit. There is also no record of any improper coercive conduct by the medical providers required to demonstrate duress.
As to whether the arbitration clause encompassed the dispute, the clause itself addressed “any dispute” that arose out of or related to the parties’ relationship, including those claims derived from any prior contractional relationship. The court found the provisions sufficiently expansive to subsume the claims, and the contractional nexus between the claims in the complaint and the contract also rendered it subject to arbitration.
The court affirmed and noted that there would be a stay (rather than a dismissal) of the court case pending arbitration.
TRIAL COURT’S ORDER DENYING DEFEDANT’S MOTION TO DISMISS MEDICAL MALPRACTICE CASE BECAUSE OF FAILURE TO SUBMIT CORROBORATING AFFIDAVIT WITHIN THE STATUTE OF LIMITATIONS, IS NOT REVIEWABLE BY CERTIORARI — THE EXCEPTION RECENTLY CARVED OUT BY FLORIDA’S COURT ALLOWING CERTIORARI REVIEW DID NOT APPLY
Adventist Health Systems v. Machalek, 48 Fla. L. Weekly D1971 (Fla. 5th DCA Oct. 6, 2023):
The plaintiff was hospitalized and told by a consulting surgeon that she needed surgery. There is little detail about the facts, but apparently the plaintiff believed there was malpractice.
The plaintiff served notices of intent including the corroborating expert affidavit of a gastroenterologist. The Defendant argued that the expert did not have expertise in the same specialty as the doctor who did the surgery. After filing the lawsuit, the plaintiff later served a corroborating affidavit from a general surgeon.
The defendants asserted that the statute had run by the time the plaintiffs served the general surgeon’s affidavit, but there was an argument over the date of discovery of the malpractice.
The trial court denied the motions to dismiss.
The defendants then petitioned for a writ of certiorari. While normally that is not the proper remedy on a denial of a motion to dismiss, there is an exception when the pre-suit requirements of a medical malpractice statute are at issue, because the purpose of the Act is to the avoid meritless claims and encourage settlement of meritorious claims.
Here, there was no argument that the physician was unqualified to submit the affidavit; rather that they provided it untimely, asserting the statute of limitations barred the case.
Under these circumstances, certiorari is unavailable to allow review. Any error regarding the timeliness of the corroborating affidavit did not deprive the physicians of their rights under the medical malpractice pre-suit screening statutes, precluding review of the denial of the dismissal by certiorari.