Operation Arbitration: Privatizing Medical Malpractice Claims

Authors

Myriam E. Gilles, Benjamin N. Cardozo School of LawFollow

Publication Date

7-2014

Journal

Theoretical Inquiries in Law

Abstract

Binding arbitration is generally less available in tort suits than in contract suits because most tort plaintiffs do not have a pre-dispute contract with the defendant, and are unlikely to consent to arbitration after the occurrence of an unforeseen injury. But the Federal Arbitration Act applies to all "contract[s] evincing a transaction involving commerce, " including contracts for healthcare and medical services. Given the broad trend towards arbitration in nearly every other business-to-consumer industry, coupled with some rollbacks in tort reform measures that have traditionally favored medical professionals in the judicial system, it is very possible that we may witness in the near future more medical contracts containing arbitration provisions. As a consequence, all manner of tort claims (including negligence, loss of chance, and other allegations of medical malpractice resulting in physical and psychological injury) might be hashed out in the sequestered universe of arbitration.

Volume

15

First Page

671

Publisher

Tel Aviv University

Disciplines

Dispute Resolution and Arbitration | Elder Law | Labor and Employment Law | Law

Recommended Citation

Myriam E. Gilles, Operation Arbitration: Privatizing Medical Malpractice Claims, 15 Theoretical Inq. L. 671 (2014).
https://larc.cardozo.yu.edu/faculty-articles/776