Medical Arbitration (Arbitration Court) as an Alternative to Civil Courts in Medical Disputes

Abstract

The purpose of the research is to study theoretical and legal basis for the creation, operation of medical arbitration, its legal sources; experience of foreign countries that use medical arbitration in resolving disputes in the field of medical relations, as well as the development of propositions for the development and operation of medical arbitration in Ukraine. The authors of the article examine the meaning of the terms of "arbitration court" and "medical arbitration". Their differences are highlighted: a) medical arbitration is an integral part of the arbitration court, it is created and operates within the arbitration court; b) medical arbitration has its own specialization (focus on resolving disputes in the field of medical relations). The authors’ definition of the term of "medical arbitration" is formulated. Regulatory legal acts that constitute the legal basis for the existence of arbitration courts in Ukraine are analyzed. The peculiarities of arbitration proceedings as an extrajudicial jurisdictional form of protection of the rights of subjects of medical legal relations are singled out: the presence of clear legislative regulation of the activities of arbitration courts; formalized nature of dispute resolution activities; jurisdictional nature of the arbitration court; legislative exclusion from the jurisdiction of the arbitral tribunal of certain categories of disputes; the absence of a direct dependence of the consequences of the dispute on the willingness of the parties to cooperate, as the party to the arbitration agreement cannot unilaterally refuse to arbitrate the dispute. The advantages of medical arbitration (arbitration court) as opposed to civil courts in medical disputes are determined. These include: simplified procedure and lack of evidence; lack of formal rules of conduct; free choice of mediator (arbitrator, mediator, consultant, etc.); confidentiality and secrecy in resolving the dispute; possibility of personal control of the course of the procedure; infinity in time; private (non-state) nature. The current state of development of medical arbitration is analyzed, as well as the main problems of its application in Ukraine are highlighted: insufficient awareness of medical arbitration and its scope, advantages before court proceedings; lack of sufficient qualified and experienced specialists; lack of state support and encouragement to use this form of protection of citizens’ rights; public distrust of new instruments of protection of the rights; the need to amend the Law of Ukraine "On Arbitration Courts" in terms of limiting the jurisdiction of arbitration courts of disputes related to consumer protection, including medical services. The advantages of medical arbitration (arbitration court) as opposed to civil courts in medical disputes are determined. International experience of applying medical arbitration at the decision of disputes in the field of medical legal relations is studied and suggestions concerning the development and functioning of medical arbitration in Ukraine are developed. It is offered to increase the volume of subordinate cases for arbitration proceedings, in particular to provide an opportunity to consider medical conflicts in this order; to work to increase the authority of arbitration and the level of competence of arbitrators; to improve state support in the establishment and promotion of arbitration courts and to create conditions for training specialists for the activities of arbitration courts, as well as to improve their skills by exchanging experience with foreign countries that have succeeded in the development of arbitration.

Keywords

• medical arbitration
• arbitration
• medical disputes
• alternative dispute resolution.