FL: hospitals sought to invoke arbitration: right to arbitration is 'waived' if suit is defended.(Hospital Law Decisions of Note

CASE FACTS: This was an appeal of a non-final order from the Circuit Court, fifteenth Judicial Circuit, Palm Beach County. Dr. John Sitarik brought suit against JFK Medical Center Limited Partnerships (JFK), Hospital Corporation of America, Inc. (HCA), Sheridan Healthcorp, Inc. (Sheridan), Gilbert Drozdow, M.D., individually and as employee/agent of Sheridan, Malcolm Dorman, M.D., individually and as employee/agent of JFK/HCA, and Gina Melby, individually, and as employee/agent of JFK/ HCA. After the complaint and answer had been filed and Sheridan had taken on the defense of the case by filing numerous motions and other notices that clearly established Sheridan's intention to defend the lawsuit, the trial court issued an order compelling Dr. Sitarik to submit to arbitration, which Sheridan sought to invoke. Dr. Sitarik appealed the court's order compelling him to arbitrate after he brought suit against the named defendants. Dr. Sitarik's contention was both that he had not agreed to arbitration in any contract with the defendants, and that even if he had, the defendants waived the right to arbitrate by filing an answer to the complaint he filed against the defendants.

COURT'S OPINION: The District Court of Appeals of Florida reversed the order of the lower court compelling Dr. Sitarik to submit to arbitration, and remanded the case back to the lower court for further proceedings consistent with its opinion. The court found, inter alia, that by filing an answer to Dr. Sitarik's complaint, as well as affirmative defenses, notices of taking depositions, two motions to dismiss, issuance of a subpoena, and a request for discovery, the defendants committed themselves to defendant the suit and waived the right to arbitration, if any. Sheridan never made any demand to arbitrate. Only at the request of JFK, another party to the litigation, did the trial court compel Dr. Sitarik to arbitrate his claim against Sheridan. In order for the court to determine whether Sheridan waived its right to compel arbitration, the court had to first determine whether it actively participated in the litigation. A party who participates in litigation waives its right to compel arbitration. The court concluded that there was absolutely no doubt that Sheridan had waived any right to arbitration. Assuming, arguendo, that Dr. Sitarik was a party to an arbitration agreement, had Sheridan invoked the right to arbitration, ab initio, arbitration would have resulted. Accordingly, the court concluded that the trial court erred when it issued its order to compel arbitration. It was a case of too little, too late! In view of the foregoing, the court determined that it was not necessary to address Dr. Sitarik's contention that he was not a party to any agreement to arbitrate. Sitarik v. JFK Medical Center Limited Partnerships, 2009-FL0507.165 (5/6/09)--FL

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition ill Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.

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