On average, the life of a malpractice claim is over one and a half years, with cases that see the inside of a courtroom taking over 2 years to conclude. Surgeons are especially likely to find themselves in court (Jena et al. 2012). According to a 2002 study, almost two-thirds of all surgeons had been sued at least once, compared to under one-third for nonsurgical practitioners (Hickson). What holds true for surgeons generally is likely to be even more applicable to transplant surgeons specifically, as such complex operations rank toward the top in medical difficulty. In light of these facts – the significant duration of medical malpractice cases and the prevalence of suits against surgeons – considerable interest exists in the viability of alternative dispute resolution.

Arbitration can take different forms as an alternative dispute resolution mechanism for medical malpractice litigation. It can be ordered by the court, agreed upon with the patient at the time of treatment, or decided upon by parties during litigation (McCullough 2006).

Court-ordered arbitration is often seen as less than helpful in the resolution process (McCullough 2006). State constitutional provisions often mitigate the effectiveness of mandatory arbitration in this setting (Mattos v. Thompson 1980). Despite the expertise a panel might bring, the process does not take the place of a jury trial, and litigants retain the rights thereto. Such arbitration can be viewed as simply adding an extra step to the process, resulting in lengthier, more costly, and more complicated litigation.

Some practice groups, health systems, and hospitals have asked patients to sign contracts at the time of the provision of service agreeing to arbitrate any professional liability matter that may arise. (Disputes outside the realm of traditional malpractice might also be the subject of these contracts.) A contract from a case litigated in Tennessee included the following language:

The parties to this agreement are Physician and Patient. It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently or incompletely rendered, will be determined by submission to arbitration and not by a lawsuit…Both parties to this contract, by entering into it, are giving up their constitutional rights to have any such dispute decided in a court of law before a jury and instead are accepting the use of arbitration.

The Tennessee Supreme Court found the agreement enforceable. They noted that the agreement was considered a contract of adhesion because of the superior bargaining power of the healthcare provider. Such contracts are unenforceable if the terms are beyond the reasonable expectations of ordinary persons or are oppressive or unconscionable. Here, the court found the contract was fair (Buraczynski v. Eyring 1996).

The Tennessee Court also rejected the argument that these types of arbitration agreements are void as against public policy (Buraczynski v. Eyring 1996). However, not all courts agree. Many courts have struck down these agreements as contrary to policy considerations. In addition, problems regarding enforceability may arise if there are parties to the lawsuit or insurers who are not parties to the contract.

Parties may also agree to binding arbitration as an alternative to jury trial after litigation has begun. These sessions are held before a single arbitrator or panel. They are almost always shorter in duration than a jury trial and thus less expensive. Evidence is presented just as if the parties were litigating in court. Agreements may be reached as to whether experts testify in person, by prerecorded video deposition, via videoconferencing, or simply by submitting a written report. The arbitrator or panel serves as judge and jury, making evidentiary rulings and returning a verdict. The verdict is final and non-appealable.

Parties in arbitrations of this sort sometimes contract in advance of the arbitration regarding the parameters of the award. Thus, the defense may agree that the plaintiff will be paid some amount even if the arbitration results in a verdict for the defendant, in exchange for plaintiff’s agreement to accept an upper limit on an award, even if that limit is exceeded by the verdict. These “high/low” agreements have an added benefit for the defendant physician – namely, if a defense verdict is returned in a high/low arbitration, no report to the National Practitioner Data Bank is required even though a payment to the plaintiff by the physician’s insurer will be made pursuant to the agreement (NPDB 2001).

Mediation is a voluntary, nonbinding process using an impartial third party to assist the parties toward a mutually acceptable resolution of their dispute. Communications in mediation are generally privileged and cannot be used as evidence if the case proceeds to arbitration or trial.

Currently, some of the most successful mediation programs are combined with early intervention, pre-litigation concepts, and patient safety initiatives. One of the earliest such programs was instituted at Rush Presbyterian–St. Luke’s Medical Center in Chicago. The Rush Project began in 1995. It emphasizes the prompt and thorough disclosure of adverse events to patients. Two mediators are used at each mediation session. Rush reports that, as a direct result of its mediation program, defense costs have been reduced by 50 %, and indemnity payments have been lowered by 40–60 % (Meruelo 2008).

Similar models are in place in many jurisdictions around the country. Many systems are designed to make the mediation option as attractive as possible to patients with potential claims by ensuring the patient understands that no rights are surrendered, the healthcare provider will pay for arbitration, the right to sue is preserved, and the statute of limitations will be extended by the time spent in the mediation process. Despite these apparent concessions, hospitals, healthcare systems, and insurers find that a patient-friendly program, combined with early and thorough disclosure of adverse events, leads to a decrease in costs with the added benefit of improved patient safety. (Insurance industry sources predict that mediation programs could result in a reduction of indemnity payments by 25 % and a reduction in defense costs by 60 % (Meruelo 2008).) In the current climate, voluntary, nonbinding mediation seems to offer the most realistic opportunity to affect savings in all aspects of the litigation process, with a concurrent and continuing focus on patient safety.

Although medical professionals and laypeople desire ideal outcomes for both donors and recipients, history and common sense teach us that such perfection is often neither possible nor attainable. Complications will invariably arise despite the valiant treatment efforts of qualified physicians in many outstanding transplant programs. Litigation can be the result of such unfortunate realities, and surgeons often find themselves sued for medical malpractice, frequently for allegedly failing to obtain informed consent. Nonetheless, transplant surgeons can insulate themselves from potential litigation and improve their own defenses when cases do arise by employing several strategies. Carefully procuring the informed consent of donors and recipients equally protects patients and surgeons. Meticulous documentation not only enables continuity of quality care but also bolsters the surgeon’s credibility at trial. Lucid communication among the transplant team helps eliminate treatment errors and heads incipient lawsuits off at the pass. Moreover, increased transparency and forthrightness in the immediate aftermath of an adverse event spell both better care and fewer negligence claims. Put into everyday practice in the transplantation setting, these approaches very well may improve patient safety, decrease costs, and reduce the volume of litigation in the years to come.