Medical Malpractice Claims

Medical Malpractice Claims

From the perspective of a medical malpractice claimant, the road to trial is long and expensive. Besides, any jury trial outcome is uncertain and the verdict can be appealed.

So, is there an effective and yet less expensive and more timely way to resolve medical malpractice claims?


As an alternative dispute resolution (“ADR”) procedure, mediation has significant advantages over traditional court litigation. Mediation is generally a confidential, cost-effective, informal, quick and mutually beneficial alternative dispute resolution procedure.

In mediation, the disputing parties choose a neutral person – the mediator, in an attempt to resolve their medical malpractice claim. The mediation procedure is generally voluntary, although most courts require the parties to mediate or arbitrate before giving the parties a trial date. The parties, physicians and patients seek to resolve their legal disagreement through the mediator – a neutral third person. The mediation procedure itself is informal, without the rigid and strict rules of evidence and court litigation. The complaint, answer, discovery, interrogatories, depositions, compulsory medical examinations, witness examination, and cross-examination can be burdensome and draining emotionally and financially for both physicians and patients. Compared to going to trial and entrusting the dispute to a jury, mediation is a more amicable and informal process. A mediator attempts to facilitate a settlement between the physician and patient by finding a path to a mutually acceptable resolution of the medical malpractice claim. Finally, mediation provides both parties with the opportunity to come to a better understanding of the other party’s position and make a settlement more likely. The mediator does not impose a settlement of the claims and damages – instead the parties resolve the medical malpractice claim through a dialogue facilitated by the mediator. That is why mediation is often called a facilitated negotiation.

In the medical malpractice context, oftentimes mediation proves to be a far more effective and humane method of dispute resolution than court litigation. Mediation provides the parties with the opportunity to listen and better understand each other’s position, keep their private and sensitive health information confidential, and resolve their dispute in a mutually beneficial manner.

Medical professionals, patients, and hospitals oftentimes consider mediation a more beneficial method of resolving medical malpractice claims. Mediation offers a path and a pragmatic way out of dispute by relieving the burden on the health care system, preserving physicians’ professional integrity, and yet justly compensating the injured patient at the same time.

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Arbitration is another alternative dispute resolution procedure, which is oftentimes more convenient than conventional court litigation.

Unlike mediation, however, arbitration is much more similar to traditional court litigation. Initially, the arbitrators’ decisions are oftentimes binding on the disputing parties. There is also the so-called non-binding arbitration, meaning that (in non-binding arbitration) the parties to the dispute can reject the arbitrator’s ruling, and, instead, proceed onto trial. The arbitration process, just like a court trial, includes opening statements, witness testimonies, and closing arguments.

However, there are significant differences from court litigation, which oftentimes make arbitration more attractive than a trial.

Even though the arbitration procedure oftentimes takes place after witness testimonies, the rules of evidence, as applied by the arbitrator(s), are generally more flexible than at trial. For example, summary of a witness’ testimony is generally allowed. The most significant difference between arbitration and a trial is that in a court trial, the judge is the referee of procedural and evidentiary disputes and the lay jurors are the decision makers – as to liability and damages. In arbitration, there is no jury. The physician and patient who choose to resolve their dispute through arbitration agree on one or more (usually three) arbitrators who will consider the evidence and issue a binding or non-binding decision. The arbitrator(s) is/are, in effect, both the judge and the jury.

Another key difference from court litigation is the cost of arbitration. It takes less time to prepare for arbitration. The depositions of expert witnesses can be taken and used at the arbitration, rather than having the expert witness physically present. Besides, there are few procedural and evidentiary disputes during arbitration proceedings. Consequently, the time involved in an arbitration hearing and, thus the expense of arbitration, is significantly lower than the cost of going through litigation and a trial.

In the health care industry, an arbitration clause is oftentimes contractually required and the patient generally waives his/her right to a jury trial. The arbitration clause may limit the damages available to the patients or stipulate that the arbitration decision is binding.

Finally, arbitration proceedings are not generally made part of the public record, which is sometimes an important advantage over court litigation, especially in medical malpractice cases. Arbitration provides the parties with an effective dispute resolution procedure, without publicly disclosing sensitive personal and medical information.


Mediation and arbitration provide various advantages to physicians, hospitals, and patients in resolving medical malpractice cases. The arbitration cost is generally low and the length of arbitration proceedings are relatively short, compared to long, drawn out litigation leading to and including a traditional court trial and resulting verdict which is subject to being appealed, thus increasing litigation costs and extending the time required to reach a final result through litigation.