Working Paper No. 12-09:
A Medical Liability Toolkit, Including ADR
Date Posted: January 2012
Abstract (below) | Full text (most recent) on SSRN
This toolkit contains the elements needed to understand the problem of medical malpractice in America today, and whether alternative dispute resolution (i.e., arbitration) clauses might be viable among other tort reform options. The toolkit introduces medical liability as an intrinsic component of tort law, which itself must be understood as a part of private ordering if efforts at reform are to prove productive. After providing an overview of the nature of tort, the nature of medical liability, and the nature of the alleged “crisis,” the toolkit indicates how reform has been attempted at the state level. Particular attention is paid to efforts to encourage enhanced private ordering through alternative dispute resolution (“ADR”), both before and after alleged malpractice has occurred. The toolkit identifies characteristics that make enforcement of such clauses more likely and points to a possible federal role in standardizing and publicizing viable arbitration clause drafting. The toolkit also includes an up-to-date list of medical liability reforms in the fifty states, the only such list to exist in the country to the knowledge of the author. Finally, the toolkit contains samples of current ADR efforts, and indicates which efforts are likely to be acceptable to the courts.