Arbitration & Mediation

Anesthesiologist Fails to Revive Arbitration Due to Waiver

By Christopher B. Hopkins, Esq.

An anesthesiologist failed to raise arbitration in a lawsuit but then piggy-backs when another party seeks arbitration. Unfortunately, the doctor had already participated in arbitration. Oh, and, months before, he had taken the position in a different case that the arbitration clause did not apply to him. Huh?

It appears the Fourth District (Damoorgian, Gross, and Farmer) did not want to spend much more time on the issue than necessary in their clean, but simple, two page May 6, 2009 opinion in John Sitarik, M.D. v. JFK Medical Center, Hospital Corporation of America (HCA, Inc.), Sheridan Healthcorp, Inc. et al.

The Opinion does not describe the underlying suit but simply says that the defendant, Dr. Sitarik, obtained an order granting arbitration from the now-deceased trial judge Winikoff. However, at the trial level, the doctor filed an Answer & Affirmative defenses, issued a subpoena, responded to discovery and never actually raised the issue of arbitration until another party did.

The Panel correctly picked up that the Raymond James v. Saldukas case holds that active participation waives arbitration. "Active participation" includes attacking the pleadings, which the Answer and Affirmative Defenses presumably did.

A separate dispute, involving similar parties, was appealed and decided in back in March, here.

For some background on waiver of arbitration, see this prior post and related links.

Full post as published by Florida Arbitration Law on May 18, 2009 (boomark / email).