Ann H. Nevers

Document Type



This paper reviews the constitutional issues surrounding medical malpractice arbitration clauses and the implementation of arbitration contracts, and the existing medical malpractice process. Federal preemption issues under the Federal Arbitration Act, enterprise liability and ERISA preemption, and cybermalpractice will be discussed. Finally, dispute resolution industry standards implemented by the American Arbitration Association and American Health Lawyers Association will be reviewed as well as current medical malpractice mediation practices in industry. While the past has shown that arbitration has not been used a great deal future trends may increase use. Emerging medical malpractice arbitration issues arising in the new millennium include (1) the use of medical malpractice awards in credentialing and provider selection (2) the use of arbitration in collective bargaining agreements between physicians and hospitals or managed care organizations (3) the finding of enterprise liability for hospitals, health plans, and managed care organizations and the extent of ERISA preemption of such liability and (4) cybermalpractice issues that arise from negligent provision of health care through telemedicine or on the Interet.