MEDICINE AND HEALTH CARE: THE NEXT FRONTIER OF ALTERNATIVE DISPUTE RESOLUTION
This research paper discusses trends regarding the use of alternative dispute resolution techniques (ADR) as a means for handling claims in the health services industry, especially medical malpractice matters. In response to alarming increases in the size and incidence of medical malpractice claims, the health service industry has experimented through legislation and private contractual arrangements with various forms of ADR. The use of binding arbitration clauses is currently in favor among major health care providers such as health maintenance organizations (HMOs) as a means of limiting their liabilities. The specific results achieved by ADR have rarely met the exaggerated expectations and claims of its adherents. The use of binding arbitration does tend to serve the interests of the HMOS, but fails to do much for the medical community or the public and in fact, may fall into disfavor as public and judicial sentiment shifts away from the current tendency to enforce such clauses.
Background and development of medical and health care ADR
ADR developed in reaction to the litigation explosion of the 1970s and 1980s in product liability, medical malpractice and other areas. In the health care area, its fundamental premise is "that the traditional litigation system is inefficient and inequitable, that is, that it fails to provide a prompt redress to those interested as a result of medical negligence. A central purpose of any alternative process is settlement of claims before trial" (Meschievitz 196). ADR takes many forms, pre-trial screening panels, neutral evaluation of cases, mini-trials, mediation and arbitration and summary jury trials, all of which represent attempts to truncate or avoid the traditional judicial trial system and to avoid its costs, delays and other disadvantages.
Current trends in medical and health malpractice cases