A few days ago, a new cert petition was filed in the United States Supreme Court regarding a Florida Supreme Court opinion concerning the arbitration of a medical malpractice claim. Bowers v. Franks, No. 13-338 (U.S. Sept. 13, 2013). The plaintiff filed a medical malpractice action in state court after her husband had died following a surgery, and an arbitration clause appeared in the new patient documents the husband had signed. The Florida Supreme Court refused to enforce the arbitration agreement because the agreement conflicted with Florida’s Medical Malpractice Act, which provided for arbitration regarding medical negligence damages if the doctor concedes liability and if the patient accepts a $1 million cap on damages. The arbitration agreement at issue did not conform to Florida’s Medical Malpractice Act because the agreement did not contain a liability concession from the doctor, and the arbitration agreement capped the plaintiff’s recovery at $250,000.
The cert petition, relying on Supreme Court FAA cases like Southland and Concepcion, contends that the FAA preempts application of this Florida law imposing certain requirements for the arbitration of medical malpractice claims.
If the Supreme Court grants cert in this case, I expect at least four votes (Justices Scalia, Kennedy, Alito, and Chief Justice Roberts) in favor of preemption. The Florida Supreme Court ruling cannot withstand the Supreme Court’s interpretation of the FAA’s broad preemption powers. However, Justice Thomas would likely not join such an opinion because of his long-held view (which I believe is correct) that the FAA does not apply in state courts. Because of the strong dissenting opinions of the liberal Justices in Concepcion and American Express regarding the powerful reach of the FAA, I have to wonder whether Justices Breyer, Kagan, Sotomayor, and Ginsburg would be willing to join together with Justice Thomas (and possibly even Justice Scalia) in this case and overrule the flawed Southland decision, which would restore power back to the states to decide on their own how they want to regulate arbitration. Could this be the silver-bullet case that finally overrules Southland?