Alternative Dispute Resolution in Healthcare

by Delilah van Tol

Alternative Dispute Resolution in health care has  not reached its potential yet.[1] A comprehensive survey of the use of ADR in health care taken in 1990[2] and later another one in 1997 can prove it.[3] People who are the victims of medical errors (almost) always want or need some compensation for the emotional, economical and/or physical damages that has been done. There are multiple reason why someone wants to be compensated for damages. For example patient safety claims against hospitals, nursing homes, physicians and other professionals, and/or product liability claims against drug and device manufacturers.[4] Moreover, disputes between physicians and hospitals and/or other staff.[5] Also is fraud, false risk claims possible reasons for a dispute.[6]

ADVANTAGES

Currently, the health care system is focused on economics and taking care of people in the most (economically) efficient way.[7] ADR is a more desired option than going to court. The benefits of ADR in the health care system are the following ones: 1) it is commonly more faster than starting a lawsuit; 2) it is more likely to see the desired outcome or closer to the desired outcome than it would be in court, as both parties have more input about the desired outcomes then they have in a court ruling. Another  advantage that should not be underestimated is that a doctor who had made a physical error and has been sued is more likely to make another one.[8] Even though, it was expected that whenever a doctor has more liability and the punishments are greater,  there would be a decrease in errors,[9] the opposite is actually true.[10] Mediation in health care is more focused on the next patients’ safety than on the punishment. The focus needs to be on the improvement and the development of the health care system. This can and will be done thanks to the possibility mediation offers on the re-establishment of communication within which expectations, flaws, and the causes of accidents can be explored.[11]

DEVELOPMENT

 ADR in the health care system has not yet reached its greatest potential; however, it has some great advantages to reassure a possibly safer future for patients that should not be ignored. The training of more law students is an essential step towards the desirable outcome.[12] The challenge in teaching law students ADR in health care context is that medical problems are severe, global, of interdisciplinary nature, and, thus, unstructured, if not unwieldy.[13] As a result, no client issue is the same, neither is there one single legal strategy. [14] Law students are more used in solving more straight forward situations and by gaining problem solving skills and developing these skills in the ADR context we are taking baby steps to a better health care system

---

[1] Filmore Buckner, A physician’s Perspective on Mediation and Arbitration Clauses in Physican-Patient Contracts, 28 Cap. U.L Rev. 307, 307-08 (2000); Leonard J. Marcus & Edward A. Dauer, Medical Failure and legal Failure: Applying Alternative Dispute Resolution Methods to Address Health System Problems and Improve Health System Outcomes, A Report Commissioned by the American Association of Retired Persons (2003)

[2] The 1990 study was conducted by the CPR Institute for Dispute Resolution. with the support of a grant from the Kellogg Foundation. The author of this part of this article served as chair of that effort. The results of the CPR work appear in E. A. Dauer et al. Health Industry Dispute Resolution: Strategies and Tools for Cost-Effective Dispute Management (CPR 1993).

[3] The 1997 update was also conducted by the present author, with the support of a grant from the Robert Wood Johnson IMPACS program.

[4] 2011 Bloomberg Finance L.P. All rights reserved. Originally published by Bloomberg Finance L.P. in the Vol. 4, No. 7 edition of the Bloomberg Law Re‐ ports—Health Law

[5] ibid

[6] ibid

[7] See e.g. E. Rolph et al, Arbitration Agreements in Health Care: Myths and Realiy, 60 L. & Contemp. Prob. 153 (1997)

[8] Passineau, Why Burned-Out Doctors Get Sued More Often, Med. Econ. 1998: Thomasson, "Patient Safety Implications of Medical Malpractice Claims Resolution Procedures," in Enhancing Patient Safety and Reducing Errors in Health Care (AAAS 1998).

[9] The most recent study that searched for and found no effect of incremental liability on incremental patient safety is Douglas Conrad et al.. The Incentive Effects of Malpractice Liability Rules on Physician Behavior.

[10] ibid

[11] Penchansky and Macnee, Initiation of Medical Malpractice Suits, 32 Med Care 813. (1994). G. Hickson et al. Factors that Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries, 267 JAMA 1359 (1992).

[12] Linda Morton, A New Approach to Healthcare ADR: Training Law Students to be Problem Solvers in the Healthcare Context, 21 Georgia State L. Rev. 965 (2005).

[13] ibid

[14] ibid