Trial and Error: Legislating ADR for Medical Malpractice Reform

63 Pages Posted: 21 Sep 2017

See all articles by Lydia Nussbaum

Lydia Nussbaum

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: January 1, 2017

Abstract

The U.S. healthcare system has a problem: hundreds of thousands of people die each year, and over a million are injured, by medical mistakes that could have been avoided. Furthermore, over ninety percent of these patients and their families never learn of the errors or receive redress. This problem persists, despite myriad reforms to the medical malpractice system, because of lawmakers’ dominant focus on reducing providers’ liability insurance costs. Reform objectives are beginning to change, however, and the vehicle for implementing these changes is alternative dispute resolution (“ADR”). Historically, legislatures deployed ADR to curb malpractice litigation and restrict patients’ access to courts. Today, a new law in Oregon combines early disclosure and ADR to help injured patients get answers and compensation, and to improve medical safety. This Article examines Oregon’s innovative ADR program and argues that, in contrast to earlier ADR reforms, the program constructs an entirely new alternative to the conventional tort system. This alternative shows promise and may succeed where other ADR reforms have failed; nevertheless, additional protections are critical to ensure fairness for patients, providers, and the public.

Keywords: ADR, Tort Reform, Medical Malpractice, Early Communication, Patient Safety, Screening Panel, Arbitration, Mediation, Medical Liability, Resolution

Suggested Citation

Nussbaum, Lydia, Trial and Error: Legislating ADR for Medical Malpractice Reform (January 1, 2017). Maryland Law Review, Vol. 76, No. 2, 2017; UNLV William S. Boyd School of Law Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3039750

Lydia Nussbaum (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

HOME PAGE: http://law.unlv.edu/faculty/lydia-nussbaum

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