The Technical and Conceptual Flaws of Medical Malpractice Arbitration
![handle is hein.journals/stlulj30 and id is 587 raw text is: ARTICLES
THE TECHNICAL AND CONCEPTUAL FLAWS OF MEDICAL
MALPRACTICE ARBITRATION
NICOLAS P. TERRY*
I. INTRODUCTION
Given the long, successful history of arbitration as an alternative
to litigation,1 it was no great surprise when the concept was pressed
into service in the medical malpractice context. The Commission on
Medical Malpractice, under the general direction of the United States
Department of Health, Education and Welfare, first suggested the
feasiblity of this latest utilization of arbitration in 1973.2 According to
the Commission, however,
[i]t became increasingly clear ... that there was a paucity of basic
knowledge, not only on the process of arbitration, but also on the
results. It was obvious that many persons and organizations who
had not analyzed the true characteristics of arbitration nevertheless
believed that it was a method of dispute settlement that would
make a major contribution to solving the malpractice crisis.'
* Associate Professor of Law, Saint Louis University. B.A. (Law) 1975, Kingston
Polytechnic; LL.M. 1976, University of Cambridge.
This Article could not have been written without the committed and enthusiastic
research assistance provided by Bart Sullivan and Kate Whitby, second year law stu-
dents at Saint Louis University School of Law. I would also like to thank Professor
Saul Boyarsky, M.D., J.D., for introducing me to many of the issues explored herein.
My colleagues Roger Goldman, Susan Kinyon, and Peter Salsich were generous with
their time in making helpful comments on an earlier draft.
1. See generally F. ELKOURI & E. ELKOURI, How ARBITRATION WORKS 2-3
(4th ed. 1985); G. WILNER, DOMKE ON COMMERCIAL ARBITRATION § 3.01-4.03 (rev.
perm. ed. 1985); Mentschikoff, Commercial Arbitration, 61 COLUM. L. REV. 846, 854-
56 (1961).
2. See DEP'T OF HEALTH, EDUCATION & WELFARE, THE REPORT OF THE SEC-
RETARY'S COMMISSION ON MEDICAL MALPRACTICE, DHEW Pub. No. (0S) 73-88
(1973) [hereinafter cited as REPORT]. California health care provider practice pre-
ceded such public comment. See Heintz, Arbitration of Medical Malpractice Claims:
Is It Cost Effective?, 36 MD. L. REV. 533, 535-40 (1977); Henderson, Contractual
Problems in the Enforcement of Agreements to Arbitrate Medical Malpractice, 58 VA.
L. REV. 947, 958-59 (1972).
3. REPORT. supra note 2, at 91-92 (emphasis added).](ViewImageLocal?handle=hein.journals/stlulj30&div=31&collection=&method=preview&ext=.png&size=3)
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The Technical and Conceptual Flaws of Medical Malpractice Arbitration
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