Operation Arbitration: Privatizing Medical Malpractice Claims
Theoretical Inquiries in Law, Forthcoming
39 Pages Posted: 11 May 2013
Date Written: May 10, 2013
Binding arbitration is generally less available in tort suits than in contract suits because most tort plaintiffs don’t have a pre-dispute contract with the defendant, and are unlikely to consent to arbitration after the occurrence of an unforeseen injury. But the Federal Arbitration Act applies to all “contract[s] evincing a transaction involving commerce,” including contracts for healthcare and medical services. Given the broad trend towards arbitration in nearly every other business-to-consumer industry, coupled with some rollbacks in tort reform measures that have traditionally favored medical professionals in the judicial system, I would predict that, in the near future, we may witness more medical contracts containing arbitration provisions. As a consequence, all manner of tort claims (including negligence, loss of chance, and other allegations of medical malpractice resulting in physical and psychological injury) might be hashed out in the sequestered universe of arbitration. This essay considers the doctrinal and policy implications of a wholesale shift of medical injury claims from courts to private arbitral bodies.
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