Cost Effective, Not Christian: Alternative Dispute Resolution
2 July 2022
BUSI 506- B01 Legal and Ethical Issues for Health Professionals
Cost Effective, Not Christian: Alternative Dispute Resolution
Cost Effective, Not Christian Retaliation is a characteristic that inhabits the heart and mind of
every man. Vengeance has been established as a societal norm, even amongst a generation that
preaches tolerance. “Revenge is primarily a basic psycho-social mechanism for repairing face-
threatening acts,”(Neuman, 2012. p. 1).This “defense” mechanism is understood as a normal
reaction to “threatening acts”.
This mindset can clearly be seen in litigation involving medical malpractice cases. From 2006 to
2016 to number of total medical malpractice cases soared upwards of550, 000 cases (United
States, 2016). Which averages to approximately 55,000 malpractice cases each year? Tens of
thousands of dollars are spent each year on litigation for malpractice cases. Nearly every single
malpractice cases that is filed are dropped without resolution. Some research has partially
attributed the rising cost of healthcare in the United States to the drastically increasing number of
malpractice cases that are filed each year.
In an effort to reduce the number of malpractice cases health care administrators, practitioners,
and legal executives have proposed increasing the use of alternative dispute resolution (ADR).
Alternative dispute resolution is a process by which disagreeing parties can resolve their dispute
without resulting to litigation and involves arbitration, mediation, or settlement conferences
(Pozgar & Santucci, 2016). However, defining ADR is much more difficult according to some.
“[ADR] encompasses breathtaking range of approaches and strategies that we lump under the
heading of “ADR” (an outmoded acronym that survives as a matter of convenience)”
(Stipanowich, 2004, p845).ADR, when defined simply, is a method employed to decrease the
amount of money spent each year in defense litigation and to ultimately improve relationships
between patients and their providers.
While ADR does have many positive characteristics some social and political philosophers
believes that ADR does not actually resolve the issue at hand. Furthermore, while ADR may be
cost effective it negates the possibility of a “good” decision being made. Based on a modern Cost
Effective, Not Christian interpretation of the Bible, many theologians and biblical ethicist would
agree that ADR does allow for resolution between parties without violation 1 Corinthians6:1-8.
In St. Paul’s letter to the Corinthians he states that Christians should not seek out legal action
against another, rather they should be steadfast in love and endure the wrong that has been done.
Early Church Fathers and Orthodox Christian theologians would disagree with ADR being an
ethical action for Christians to partake in. Orthodox and Early Church theologians hold to the
idea that the desire itself to seek compensation for a wrong is itself, unethical.
Alternative Dispute resolution has become a popular method is handling situations where
malpractice cases would be inevitable. With approximately 55,000 malpractice cases each year
being filed against practitioners over the past 10 years. Malpractices cases are expensive, and
nearly $23,000 in defense litigation is spent on each malpractice case, when a payout results.
(Seabury et al., 2012). Even in malpractice cases where monetary payouts are not made to the
plaintiff $17,000 dollars is spent in the necessary defense litigation (Seabury et al, 2012). The
number of malpractice cases that are filed each year varies depending on the specialty of the
individual physician.
Research published in The New England Journal of Medicine has shown that "across specialties,
7.4% of physicians annually had a claim, whereas 1.6% made an indemnity payment," (Jena et
al, 2011). The conducted research concluded that, physicians in low-risk specialties, 36% were
projected to face their first claim by the age of 45 years, as compared with 88% of physicians in
high-risk specialties. By the age of 65 years, 75% of physicians in low-risk specialties and 99%
of those in high-risk specialties were projected to face a claim. (Jena et al, 2011). Furthermore,
the Physicians Insurers Association of America concludes that nearly 64% of the cases are
dropped, withdrawn, or dismissed (Carroll et al, 2012). Costs that accrue from defense litigation
directly impacts the overall cost of health care. With defense costs per case being so exorbitantly
high, ADR presents itself as a cost-effective alternative to traditional defense litigation.
Healthcare malpractice cost has continued to rise there is also growing effort to reduce such cost.
Mediation and arbitration are a few of the methods that have been employed to combat the rising
cost of litigation. The rising cost of litigation involved with malpractice claims has a drastic
impact on the cost of health care. Between $76 and $126 billion is spent per year on litigation,
which is an indirect source of healthcare cost inflation. The cost of litigation also impacts the
cost of malpractice insurance. Since 1976 insurance premiums for malpractice insurance has
risen 920%, (Sohn et al, 2012). This research shows that the cost of litigation, and the subsequent
rising cost of malpractice insurance has a direct effect on the cost of healthcare to the average
patient (Grandstaff, 2017).
ADR not only presents a solution to the outlandishly high cost of defense litigation. ADR may
also play a key role in reducing the overall cost of malpractice insurance and subsequently the
overall cost of healthcare. Alternative dispute resolution has been employed for decades in an
effort to reduce the cost of malpractice litigation. During the 1970's an event known as the
"medical malpractice crisis" occurred. During this time malpractice cases tripled and physicians
demanded state officials offer relief, (Schor, 1988). The state began to explore types of ADR to
decrees the number of cases as well as the amount of time and money spend on traditional
litigation.
Methods such as screening panels and arbitration were employed as methods to reduce the
number of malpractice cases. In 95% of all malpractice cases, ADR significantly decrease the
amount of time that all involved parties spent in the courtroom, (Stipanowich, 2004). ADR not
only decreases the amount of time spent in the court room, there are many additional benefits
that ADR presents. ADR impacts the " overall satisfaction with the process or its results,
perceptions of fairness, perceived costs, speed of resolution, continuing relations between family
members or other participants, compliance, and collection of restitution in victim-offender
scenarios," (Stipanowich, 2004, p.861). ADR shows great promise in significantly improving the
patient-provider relationship.
Along with positively reinforcing relationships between practitioners and patients, ADR is also
successful in "getting quicker and less costly resolution, tailoring creative solution, serving
business goals, improving relationships, enhancing the quality of human interaction, and
"opening up" the dispute resolution process to the broader community" (Stipanowich, 2004).
ADR has shown significant promise in reducing the cost of defense litigation. ADR also allows
for more open communication between practitioner and their patients.
While ADR does reduce the amount of money spent on defense litigation and improve the
relationships between practitioners and patients, ADR is not without its own pitfalls. ADR,
according to modern social and political philosophical thinkers, such as Stuart Hampshire,
suggest that ADR obstructs a "good" decision from being made (Menkel-Meadow, 2011). Stuart
argues that "good" decisions are not made; rather people come to an agreement on policies of
handling ADR. The deeper concern is that decision are made not because they are right or in
favor of the innocent party, in a dispute situation, rather ADR is implemented simply to avoid the
cost of litigation.
Furthermore, ADR is becoming its own form of litigation. ADR is becoming increasingly
specialized and, like politics, local" a creature of an industry or practice area, a court jurisdiction
or geographical region, a culture, community, relationship, or transaction. One of the abiding
themes... is that when it comes to mediation, or to arbitration, everything hinges on the details"
(Stipanowich, 2004, p. 846). ADR is effective at decreasing the cost of litigation; however, the
evidence that suggest that ADR results in good, ethical decisions is minimal. Alternative dispute
resolution is a method of conflict resolution that would seem to alight with the teachings of Jesus
during the Sermon on the Mount.
In the Gospel of St. Matthew, Jesus states "Come to terms quickly with your accuser while you
are going with him to court, lest your accuser hand you over to the judge, and the judge to the
guard, and you be put in prison," (Matthew 5:25). By using mediation and arbitration disputing
parties are able to settler their disputer outside of the courtroom and in effect "come to terms
quickly" with one's accuser. "Christian conciliation is similar in many respects to ordinary ADR,
statutory and case law affecting ADR would likely have a similar effect on conciliation,"
(Waddell et al, 1999, p.583). However, a closer look at the teachings of Christ and the Epistles of
St. Paul reveals a different mentality to dispute resolution. Jesus states, you have heard that it
was said, 'Eye for eye, and tooth for tooth.' But I tell you, do not resist an evil person. If anyone
slaps you on the right cheek, turn to them the other cheek also. And if anyone wants to sue you
and take your shirt, hand over your coat as well. (Matthew 5:38-40, ESV).
Christ specifically mentions in this passage that if anyone desires to sue another, then you give
them more than what they are asking for. Jesus continues in verse 41 to say, "If anyone forces
you to go one mile, go with them two miles." In the first letter of St. Paul to the church in
Corinth, St. Paul communicates to the church that any Christian who takes his brother to
"unbelievers," which means to civil court, has forgotten that the concerns of this life are not to
weigh so heavily on our hearts. In 1 Corinthians 6:7,8, St. Paul states, "To have lawsuits at all
with one another is already a defeat for you. Why not rather suffer wrong? Why not rather be
defrauded? But you yourselves wrong and defraud even your own brothers!” St. Paul asserts that
Christians should rather be defrauded and suffer for the name of Christ than to seek out
retribution towards a brother. Continuing with this apostolic teaching on dispute resolution, St.
Clement of Alexandria states, "To say, then, that the man who has been injured goes to law
before the unrighteous, is nothing else than to say that he shows a wish to retaliate, and a desire
to injure the second in return, which is also to do wrong likewise himself. "Havrda et al, 2012).
St. Clement argues that seeking any type of retribution towards someone who has committed a
wrong is not reconcilable with Christian ethic.
St. Clement continues his argument by saying, "Know ye not that the unrighteous shall not
inherit the kingdom of God?" He acts unrighteous who retaliates, whether by deed or word, or by
the conception of a wish, which, after the training of the Law, the Gospel rejects," (Havrda et al,
2012). This ideology is shared by other early Church theologians and writers, such as St. John
Chrysostom. St. John Chrysostom, Archbishop of Constantinople 397-407, states, while
delivering his homily on 1 Corinthians 6, states,
Thus far, the act itself of going to law brings each party under his censure, and in that respect one
is not at all better than another. But whether one go to law justly or unjustly, that is quite another
subject. Say not then, which did the wrong? For on this ground I at once condemn you, even for
the act of going to law. (Chrysostom).
During the early era of the Church there was a continuous idea that disputes were to be quickly
reconciled and that the Christian was to consider themselves as lesser than their brother.
Christians were to give more than what their accuser was asking for. Christians were not to seek
retribution; rather they were to seek repentance. While ADR does present a way to handle
malpractice cases at a lower cost, while building stronger relationships between practitioners and
parents, the concept of ADR is not fully reconcilable with the history of Christian thought
towards dispute resolution.
Reference
Carroll, A., Parikh, P., Buddenbaum, J. (2012). The impact of defense expenses in medical
malpractice claim. The Journal of Law, Medicine & Ethics, 40 (1), 135-142.
Grandstaff, D. (2017). Cost saving efforts of alternative dispute resolution . Unpublished
manuscript, Legal and Ethical Issues for Health Professionals, Liberty University, United States
of America.
Havrda, M., Hušek, V., & Plátová, J. (2012). The seventh book of the "Stromateis": proceedings
of the Colloquium on Clement of Alexandria (Olomouc, October 21-23, 2010). Leiden: Brill.
Jena AB, Seabury S, Lakdawalla D, Chandra A. (2011). Malpractice Risk According to
Physician Specialty. The New England Journal of Medicine. 365(7):629-636.
Menkel-Meadow, C. (2011). Scaling up deliberative democracy as dispute resolution in
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Neuman, Y. (2012). On revenge. Psychoanalysis, Culture & Society , 17(1), 1-15.
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MA: Jones & Bartlett Learning.
Seabury, S., PhD., Chandra, A., PhD., Lakdawalla, D., PhD., & Jena, Anupam B,M.D., PhD.
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