Prescribing Arbitration to Cure the Common Crisis: Developing Legislation to Facilitate Arbitration as an Alternative to Litigating Medical Malpractice Disputes in Pennsylvania
![handle is hein.journals/dlr110 and id is 819 raw text is: Prescribing Arbitration to Cure the Common
Crisis: Developing Legislation to Facilitate
Arbitration as an Alternative to Litigating
Medical Malpractice Disputes in
Pennsylvania
Marcy L. McCullough*
I. Introduction
Pennsylvania's medical malpractice crisis has been throbbing for
quite some time, and resolving it will likewise take time.1 Heated debate
as to the cause of the crisis continues between health care providers,
consumer groups, insurance companies, and plaintiffs' attorneys.2
Although unable to agree on a specific remedy,3 all interested groups
* J.D. Candidate, The Dickinson School of Law of the Pennsylvania State
University, 2006; B.A. Economics, B.S. Communication, magna cum laude, Millersville
University, 2003. The author wishes to thank Professor Thomas E. Carbonneau for his
insights. The author would also like to thank her family and friends for their love and
support throughout the writing and editing process of her comment.
1. See RANDALL R. BOVBJERG & ANNA BARTOW, UNDERSTANDING
PENNSYLVANIA'S MEDICAL MALPRACTICE CRISIS 46 (2003) [hereinafter Bovbjerg &
Bartow]. Medical malpractice crises have plagued the Commonwealth since the 1970's.
Id.
2. See Kenneth Jost, Medical Malpractice, THE CQ RESEARCHER ONLINE 6 (Feb.
14, 2003), http://library.cqpress.com/cqresearcher/cqresrre2003021400 (last visited Jan.
17, 2006) [hereinafter Jost]. Health care providers argue that the legal system is the
cause of rising insurance premiums, asserting that trials take considerable time and jury
verdicts have been increasing at rampant rates, up forty-three percent from 1999 to 2000.
Id. Comparatively, trial attorneys and consumer groups blame the insurance industry,
arguing that insurance premiums are increasing because of a recurrent business cycle tied
to low returns on insurer's investments rather than to high litigation costs. Id.
3. Id. Health care providers advocate tort reform by way of imposing caps on
plaintiffs' non-economic, pain and suffering damages to remedy the crisis through
lowering medical malpractice insurance premiums. In opposition to caps, consumer
groups and attorneys argue for insurance reform asserting that damage caps will have no
effect on malpractice premiums. Id. at 16-17. Under the Commonwealth's Constitution,
caps on pain and suffering damages are not a reform option in Pennsylvania. See infra
text accompanying notes 57-60.](ViewImageLocal?handle=hein.journals/dlr110&div=38&collection=journals&method=preview&ext=.png&size=3)
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