Pre-Suit Mediation in Medical Disputes

Abstract

Medical disputes mostly arise from the treatment of patients that do not meet the latter’s
expectations, whether this is the result of a force majeure or a medical malpractice. Today the number
of medical disputes that become lawsuits is steadily increasing. This does not mean that present-day
medical doctors are more careless in their practice, or that the treatment they give increasingly
deviates from the accepted norms or standards. The main reason for the rise in the number of medical
lawsuits is that society, the legal system, public knowledge and understanding have all contributed
to greater awareness of the rights and obligations of people’s in society. Thailand has adopted a postsuit
mediation approach. This results in the success of mediation becoming more difficult, because
the parties to the disputes lack knowledge and understanding of mediation, and those against whom
the lawsuit is being taken often have a misperception that agreeing to a settlement in mediation
means accepting that they are the wrong party in the lawsuit that is being brought against them.
This paper aims to study only two important issues, namely (1) to study the specific features ofmedical disputes and legal relations of the parties to the disputes with a view to selecting a proper
pre-suit mediation approach, and (2) to compare measures for alternative dispute resolution (ADR) in
the United States with those in Thailand for the purpose of improving Thai law relevant to the
resolution of this type of disputes.