ADR as Tort Reform
October 29, 2007
All of the attention devoted to healthcare reform by the entire field of Presidential candidates reveals little mention of the need for medical malpractice reform. Yet is there any question that reform of the current system of using unfettered, contingency fee litigation to address medical errors is essential to a meaningful improvement of our healthcare system? As noted recently in the Healthcare Policy and Marketplace Review, an upcoming Common Good Public Forum in Washington, D.C. on November 5 will address “Health Courts, Administrative Compensation & Patient Safety: Research, Policy & Practice.” The topics and speakers promise to be interesting.
On a slightly different track to the same destination, Kathleen Clark (on the website of the Collaborative Law Committee of the ABA\’s Dispute Resolution Section) suggests the use of collaborative law as an alternative to the current malpractice litigation model. The theory of Ms. Clark\’s argument is compelling, and should be considered in concert with the broader, governmental initiatives to be discussed at the Common Good Public Forum. However, I think Ms. Clark dismisses too completely the utility of “non-collaborative” techniques such as traditional mediation in reforming the current malpractice system.
Notwithstanding the theoretical soundness of the collaborative approach, there are serious practical impediments to its widespread use by plaintiffs\’ and defendants\’ counsel in the near future. More importantly, there is no reason that the boundaries of traditional mediation cannot be pushed incrementally to include a wide range of techniques to help resolve malpractice claims on a case by case basis. Writing in the current issue of Dispute Resolution Magazine (Fall 2007, Volume 14, Number 1), David A. Hoffman cogently illustrates the evolving boundary lines between mediation, arbitration and collaborative law. Although not expressly directed at the malpractice debate, his points would apply there as well.
Malpractice reform may be closer than we think.
[Image: Cartoon by John Tenniel, for Punch of May 25, 1867. The leading jockey is Benjamin Disraeli; to his right is William Gladstone. The Reform Bill referred to ultimately became the 1867 Reform Act.]