Physician-patient arbitration agreements
| Autor | Mariela Suárez |
| Páginas | 37-45 |
PHYSICIAN-PATIENT ARBITRATION AGREEMENTS
MARIELA SUÁREZ
I. Introduction ................................................................................................................................................................ 37
II. The Federal Arbitration Act and Preemption .................................................................................................... 38
III. Medical Malpractice Arbitration in Light of the FAA ................................................................................... 40
IV. Conclusion ................................................................................................................................................................. 44
I. INTRODUCTION
Over the last few years, there has been a considerable increase in the frequency and impact
of medical malpractice litigation. Each year, approximately fifteen claims are filed for every one
hundred physicians in the United States, and 30% of those claims result in an insurance payment.1
As illustrated in a study conducted by the Joint Economic Committee of the United States
Congress, this consistent influx of insurance claims has increased the value of malpractice
insurance premiums for health care providers, which in turn has led to higher costs for the health
care system as well as reduced access to medical services.2 Attention has been given to the use of
pre-dispute arbitration agreements as an alternative to traditional litigation of medical
malpractice disputes.3
Pre-dispute binding arbitration agreements are contracts in which both patients and
physicians irrevocably commit to an arbitration process before any dispute has arisen regarding
the medical care provided.4 It functions as an alternative to judicial litigation in that it provides
binding determinations through presumably less expensive, more efficient and expert, and
nonetheless fair proceedings.5 By entering a contract of arbitration, both physicians and patients
voluntarily abandon their right to submit their claims before a court of law, agreeing instead to
submit the medical claim before a panel of arbitrators.6
Initially, arbitration agreements were encouraged for use primarily in commercial
contexts. However, due to the strong public policy favoring arbitration both at federal and state
level, the use of pre-dispute arbitration agreements has increased dramatically over the last
decade.7 Thus, pre-dispute arbitration clauses can now be found in a wide range of noncommercial
contracts, such as contracts between investors and broker dealers, credit card agreements,
employee handbooks and contracts, purchase contracts, cell phone bills, home mortgages,8 and
health care contracts.9
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1 Jonathan Todres,
Towards Healing and Restoration for All: Reframing Medical Malpractice Reform
, 39 CONN. L.
REV. 667 (2006).
2 S TAFF OF H.R. JOINT ECON. COMM., 108TH CONG., LIABILITY FOR MEDICAL MALPRACTICE: ISSUES AND EVIDENCE 1
(Comm. Print 2003), http://www.danmiller.org/pubs/MedMal_2003.pdf.
3 Nancy M. Simone,
Medical Malpractice Litigation: A Comparative Analysis of United States and Great Britain
, 12
SUFFOLK TRANSNAT’L L. REV. 577, 597 (1989).
4 Kenneth A. DeVille,
The Jury is Out: Pre-Disputes Bidding Arbitration Agreements for Medical Malpractice Claims
,
28 J. LEGAL MED. 333, 334 (2007).
5
Id.
at 333.
6
Id.
7 Elizabeth K. Stanley,
Parties’ Defenses to Building Arbitration Agreements in the Health Care Field & the Operation
of the Mccarran-Ferguson Act
, 38 ST. MARY’S L. J. 591, 592 (2007).
8 DeVille,
supra
note 4, at 334.
9 Stanley,
supra
note 7, at 592.
Para continuar leyendo
Solicita tu prueba