72 Pages Posted: 1 Mar 2011 Last revised: 20 Apr 2012
Date Written: February 28, 2011
Trade in international health services has the potential to play a leading role in the global economy, but its rapid growth is impeded by legal barriers. Advances in technology and cross-border movement of people and health services create legal ambiguities and uncertainties for businesses and consumers involved in transnational medical malpractice disputes. Existing legal protections and remedies afforded by traditional judicial frameworks are unable to resolve the following challenges: (1) assertion of personal jurisdiction; (2) choice of forum and law considerations; (3) appropriate theories of liability for injuries and damages arising from innovations in medical care and delivery of health services; and (4) enforcement of foreign judgments. Such legal uncertainties and ambiguities call for a uniform means of redress that is more flexible and predictable than litigation in a court room. Given such needs, arbitration offers a potential solution, as it is a private streamlined adjudication process that has been successfully utilized on an international level to resolve several of the above mentioned legal quandaries. The voluntary, flexible, and legally binding nature of arbitration agreements across jurisdictions makes this form of dispute resolution more efficient and adaptive to changes in the health services industry than litigation. With careful construction of an approach that accounts for arbitration costs, reasonable recovery amounts, and complementary mechanisms such as no-fault compensation, international arbitration of medical malpractice disputes will reallocate the legal risks borne by businesses and consumers more fairly and efficiently.
Keywords: arbitration, health, healthcare, international law, international health services
Suggested Citation: Suggested Citation
Gantz, David A. and Gupta, Amar and Sao, Deth, Disputes Related to Healthcare Across National Boundaries: The Potential for Arbitration (February 28, 2011). George Washington International Law Review, 2011; Arizona Legal Studies Discussion Paper No. 11-24. Available at SSRN: https://ssrn.com/abstract=1772984