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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

PIERO PALACIOS, 

Appellant, 

v. 

SHARNICE LAWSON, 

Appellee. 

No. 4D2023-0869 

[March 6, 2024] 

Appeal of a nonfinal order from the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Samantha Schosberg Feuer, Judge; 

L.T. Case No. 502022CA000383. 

Jessica M. Hernandez, RoseMarie Antonacci-Pollock, and Alexander 

Pollock of Falk, Waas, Hernandez, Solomon, Mendlestein & Davis, P.A., 

Boca Raton, and Michael D. Meuti of Benesch, Friedlander, Coplan, & 

Aranoff, LLP, Cleveland, Ohio, for appellant. 

Grace Mackey Streicher and Andrew A. Harris of Harris Appeals, P.A., 

Palm Beach Gardens, and William D. Zoeller of Schuler, Halvorson, 

Weisser, Zoeller, & Overbeck, West Palm Beach, for appellee. 

PER CURIAM. 

The defendant in a medical malpractice action appeals an order denying 

his motion to compel arbitration. The trial court ruled that the arbitration 

agreement at issue was void as against public policy because it 

contravened the legislative intent of Florida’s Medical Malpractice Act (“the 

MMA”). We reverse because the agreement does not disrupt the MMA’s 

policy goals but instead reflects the parties’ choice to arbitrate the claim 

entirely outside that statutory framework. 

Background 

The plaintiff registered online with a company called SmileDirectClub 

to receive clear aligner orthodontic treatment. As part of her enrollment, 

the plaintiff accepted the following arbitration agreement: 
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I hereby agree that any dispute regarding the products and 

services offered through SmileDirectClub and/or by my 

affiliated dental professionals, including but not limited to 

medical malpractice disputes, will be resolved through final 

and binding arbitration before a neutral arbitrator and not by 

lawsuit filed in any court. . . . I understand that I am waiving 

any right I might otherwise have to a trial by jury. . . . I agree 

that the arbitration shall be conducted by a single, neutral 

arbitrator selected by the parties and shall be resolved using 

the rules of the American Arbitration Association. 

The defendant is an orthodontist affiliated with SmileDirectClub who 

treated the plaintiff remotely and prescribed a clear aligner. The plaintiff 

later claimed the defendant was negligent in failing to discover and treat 

her periodontal disease. 

The parties completed the MMA’s presuit investigation process, but 

neither party requested voluntary binding arbitration under section 

766.207, Florida Statutes (2020). The defendant ultimately rejected the 

plaintiff’s claim. 

The plaintiff then filed a complaint alleging medical malpractice. The 

defendant moved to compel arbitration pursuant to the plaintiff’s 

agreement with SmileDirectClub.1 In response, the plaintiff argued that 

the arbitration agreement was void as against public policy because it was 

inconsistent with the terms of voluntary binding arbitration under the 

MMA. 

The trial court ruled that the arbitration agreement was void as against 

public policy and denied the defendant’s motion. This appeal followed. 

Analysis 

We review the order denying the defendant’s motion to compel 

arbitration de novo because it is based on a purely legal issue. See Dewees 

v. Johnson, 329 So. 3d 765, 769 (Fla. 4th DCA 2021). 

The Legislature enacted the MMA to alleviate rising medical malpractice 

insurance premiums by decreasing the costs of defending claims. § 

766.201(1), Fla. Stat. (2020); see also Univ. of Miami v. Echarte, 618 So. 2d 

1 The plaintiff does not dispute that the defendant is entitled to enforce the 

arbitration agreement as an intended third-party beneficiary. See generally 

Mendez v. Hampton Court Nursing Ctr., LLC, 203 So. 3d 146, 148-49 (Fla. 2016).
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189, 191 (Fla. 1993). To that end, the MMA requires prompt determination 

of the merits of claims through a presuit investigation process and 

encourages arbitration as to damages for non-frivolous claims. See §§

766.201(1)(d), (2), .207(2), Fla. Stat. (2020); see also Echarte, 618 So. 2d 

at 191–93.

The MMA provides “[s]ubstantial incentives for both claimants and 

defendants” who submit claims to arbitration under the MMA. § 

766.201(2)(b)1., Fla. Stat. (2020). The primary incentives for defendants 

are a $250,000 cap on non-economic damages per incident and the

preclusion of punitive damages. §§ 766.207(7)(b), (d), Fla. Stat. (2020). 

The incentives for claimants include, among other things, the defendant’s 

concession of liability, a relaxed evidentiary standard as to damages, and

prompt payment of the arbitration award with interest penalties. See

Hernandez v. Crespo, 211 So. 3d 19, 25 (Fla. 2016); see also Echarte, 618 

So. 2d at 194.

The Florida Supreme Court has recognized that parties are free to 

“contract around” the MMA. See Hernandez, 211 So. 3d at 25; see also 

Franks v. Bowers, 116 So. 3d 1240, 1247 (Fla. 2013). This is particularly 

true where the parties’ agreement addresses the “same mischief that the 

[MMA] seeks to address.” See Franks, 116 So. 3d at 1255–56 (Canady, J., 

dissenting) (“Nothing in the statute can be read to support the conclusion 

that the purpose of the statute is thwarted by voluntary pre-dispute 

agreements . . . designed to limit the cost of litigation and the amount of 

paid claims.”). However, an arbitration agreement that purports to 

incorporate the statutory scheme without providing the same balance of 

incentives to submit claims to arbitration contravenes the Legislature’s 

intent and is therefore void as against public policy. See Hernandez, 211 

So. 3d at 25–27; see also Franks, 116 So. 3d at 1248.

In Franks, the parties’ agreement required medical malpractice claims 

to be submitted to binding arbitration under the Florida Arbitration Code

and capped non-economic damages at $250,000 per incident, consistent 

with the MMA. Franks, 116 So. 3d at 1242. The Supreme Court held that 

the agreement was void as against public policy because it removed the 

claimant’s incentives to submit claims to arbitration under the MMA; most 

importantly, it capped the claimant’s recovery of non-economic damages 

without requiring the defendant to concede liability. Id. at 1248. The 

Court stated that “any contract that seeks to enjoy the benefits of the 

arbitration provisions under [the MMA] must necessarily adopt all of its 

provisions.” Id. at 1248.
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In Hernandez, the parties agreed generally that the provisions of the 

MMA would apply to any claim for medical malpractice, except that if the 

parties did not mutually agree to arbitration under the MMA, then the 

claim would be submitted to binding arbitration under the Florida 

Arbitration Code. Hernandez, 211 So. 3d at 21–23. The Supreme Court 

held that the agreement was void as against public policy because it 

purported to incorporate the MMA but did not provide the same benefits 

to the claimant in exchange for giving up the right to a jury trial. Id. at 

26–27. The Court explained that allowing parties to “pick and choose” 

which provisions of the MMA to include in their arbitration agreements 

would render the statutory scheme meaningless. Id. at 27. The Court

emphasized that parties are free to enter into contracts outside the scope 

of the MMA’s provisions but are not free to “disrupt[] the balance of 

incentives the Legislature carefully crafted to encourage arbitration.” Id.

Here, the lower court relied on Franks and Hernandez in ruling that the 

arbitration agreement between the plaintiff and SmileDirectClub was void 

as against public policy because it did not provide the plaintiff any of the 

benefits of arbitration under the MMA. However, the agreement at issue 

is materially different from the agreements in Franks and Hernandez

because it does not incorporate, nor purport to incorporate, any of the 

provisions of the MMA. The parties did not “disrupt[] the balance of 

incentives” under the MMA by “pick[ing] and choos[ing]” which of its

provisions to include in their agreement. See Hernandez, 211 So. 3d at 

27. Nor did they “seek[] to enjoy the benefits of the arbitration provisions 

under [the MMA]” without adopting all of its provisions. See Franks, 116 

So. 3d at 1249.

Instead, the parties exercised their freedom to contract around the 

MMA by agreeing to arbitrate medical malpractice claims entirely outside 

its framework. See Hernandez, 211 So. 3d at 27. In doing so, neither 

party obtains the benefits of arbitration under the MMA, which is in accord

with the well-settled principle that contractual waivers are enforceable 

under Florida law for any type of rights. See Bellaire Secs. Corp. v. Brown, 

168 So. 625, 639 (Fla. 1936) (“A party may waive any right to which he is 

legally entitled, whether secured by contract, conferred by statute, or 

guaranteed by the Constitution.”). Further, unlike other statutory 

remedies, the Legislature has not prohibited a waiver of the remedies 

provided in chapter 766. See, e.g., § 443.041, Fla. Stat. (2020) (containing 

the specific prohibition against waiving rights under Florida's 

unemployment compensation law and voiding any agreement that 

attempts to waive those rights). Here, the parties’ agreement was freely 

entered into and thus is enforceable as a matter of law. See Hernandez, 

211 So. 3d at 27; Franks, 116 So. 3d at 1255–56 (Canady, J., dissenting).
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Therefore, the trial court erred in ruling that the parties’ arbitration 

agreement contravened the Legislature’s intent and violated public policy. 

We reverse the order denying the defendant’s motion to compel arbitration 

and remand for further proceedings consistent with this opinion.

Reversed and remanded.

KLINGENSMITH, C.J., GROSS and CONNER, JJ., concur.

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Not final until disposition of timely filed motion for rehearing.