Medical Malpractice: A Challenge to Alternative Dispute Resolution.

Abstract

Ideally, medical malpractice actions should deter medical negligence and compensate victims in a manner that is fair, speedy, cost-effective and accessible. Tort critics, however, argue that tort law in general and malpractice actions in particular do not match this ideal. But there is considerable debate about whether the identified faults are inherent or optional in tort adjudication. Those who believe adjudication itself is faulty propose alternative strategies including no-fault compensation schemes, public law prosecution and arbitration. In the paper's first section we consider whether the performance of the traditional adversarial system of dispute resolution in medical malpractice cases is inadequate. Arbitration's effectiveness as an alternative to litigation is then evaluated with reference to three arbitration models employed in the United States. We conclude that arbitration reforms offer distinct advantages but are no panacea for some basic justice problems that stem from political, legal and economic power imbalances between physicians and their clients.