Mr. Lillard was a student at Washington and Lee University Law School when he wrote this article. He is now an associate in the New York City law firm of Donovan, Leisure, Newton & Irvine. Mr. Lillard expressed thanks to Professor Marcus L. Plant, Visiting Professor from the University of Michigan Law School, for his assistance in preparing the article.
Arbitration has for about twenty years served as an alternative to medical malpractice litigation, in some cases without denying wrongfully injured patients access to the courts. In many cases, attorneys and physicians have found that the courts are ill-equipped and the law unclear in the malpractice area, and that medical experts are unwilling to testify against fellow physicians. Because malpractice claims involve technical facts peculiar to the medical profession, and because litigation involves publicity and delay, private and expedient arbitration has been employed by medical and bar associations to predetermine malpractice disputes with a greater degree of expertise and to relieve crowded court calendars. In some instances, pure arbitration is used in malpractice causes, where by contract a patient agrees before treatment to submit any malpractice claims which might arise to arbitration and not to litigation and agrees to be bound by the award. However, emerging as a pre-trial mediation procedure of great merit is the "malpractice screening panel."