NCJ Number
95401
Journal
Rutgers Law Review Volume: 33 Issue: 2 Dated: (Winter 1981) Pages: 454-501
Date Published
1981
Length
48 pages
Annotation
An examination of the use of voluntary binding arbitration to settle medical malpractice claims analyzes and compares existing medical malpractice arbitration statutes and case law in jurisdictions without such statutes.
Abstract
The primary focus is on the problems created by the diverse approaches to medical malpractice arbitration by States that have enacted specialized medical malpractice arbitration laws and those that have not. In States having medical malpractice arbitration statutes, formal arbitration agreements and procedures are controlled by law. Parties in States not having these statutes can arbitrate under the general arbitration law, but their probability of success in enforcing the agreement is low. Although various constitutional challenges have been made against binding arbitration, these laws have been upheld because of the voluntary nature of the parties' agreement to arbitrate. Notice of arbitration, including statutory requirements and consensual agreements; power to bind third parties, such as a parent's authority to bind minor children and an employer's power to bind employees; and revocation of agreements to arbitrate are covered. Arbitration laws differ in the method of case administration, parties covered, composition of the case administration, parties covered, composition of the arbitration panel, method of arbitrator selection, duration of the agreement, and availability of discovery procedures. An important issue is whether public policy should permit a patient to waive the right to a jury or court trial by the use of arbitration. A medical malpractice statute would reduce the number of inconsistent and sometimes contradictory laws, ensure enforcement, and reduce the time and expense of State-by-State drafting and enactment of individual statutes. The model statute could take the form of an additional chapter of the Uniform Arbitration Act or an independent model medical malpractice arbitration act. An act incorporating the most useful features of existing State medical malpractice arbitration laws -- such as clear notice of waiver of jury trial, specified forms of agreements, right to revocation, broad party coverage, balanced three-person panels, and final and binding awards -- could be a valuable tool for addressing the recurrence of the medical malpractice crisis. Extensive footnotes and the model act are provided.