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Avoiding court may offer best outcome for everyone

Ethics Forum. March 1, 2004.

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Scenario: Can you require patients to agree to arbitration?

Are mandatory arbitration agreements an appropriate alternative to the current malpractice system?

Reply:

Malpractice is a tort. The major objective in a malpractice action is to shift responsibility for damages incurred from the patient to the person or persons responsible for the damages. The tort system needs to function properly so that in cases of negligent behavior the responsibility for damages that cause injuries is transferred from those who are injured to those whose acts are negligent.

The current malpractice litigation system performs poorly when compared to this ideal. As discussed in a recent New England Journal of Medicine, a large, peer-reviewed study of medical injuries has been published every decade since the 1970s demonstrating that: those who are negligently injured typically do not sue; those who sue typically were not negligently injured; and jury awards correlate with disability, not with negligence.

The results of the current malpractice litigation system are not aligned with the system's purpose of compensating injured patients.

Very few injured patients sue for malpractice. There are many reasons for this. Some patients, however, who want to initiate a malpractice action find that they cannot because access to the court system is limited by lack of access to an attorney.

Attorneys agree to represent patients when the award expected in the event of a win multiplied by the probability of a win exceeds the expected litigation cost by a sufficient margin. Injured patients must overcome this economic hurdle to access the court system. It is not in society's best interest to ration access to justice based on an attorney's business decision.