By Troy Torres
Senators Therese Terlaje and Telo Taitague introduced a bill that will reform Guam's decades-old Medical Malpractice Mandatory Arbitration Act. While it is unlikely the bill will be passed before the 35th Guam Legislature dies in January, David Lubofsky says Ms. Terlaje and Ms. Taitague have committed to reintroduce the bill early next year.
"What's important right now is that the conversation continues about this," Mr. Lubofsky told Kandit. "I don't want this to go away."
Mr. Lubofsky's son, Asher Dean, died October 31, 2018 at Guam Memorial Hospital at the age of five. The father brought Asher Dean to the SDA clinic two days prior, when the boy had a fever and symptoms of pneumonia. According to Mr. Lubofsky, attending physician Dr. Shinshin Miyagi did not perform standard medical checks of Asher Dean's chest and ignored his requests for a more thorough examination. On October 30, Lubofsky brought his son to the GMH ER; he was then admitted to the pediatrics ward, where he remained until his death at around 7 a.m. the following morning.
In two lawsuits Mr. Lubofsky filed in local and federal court, the grieving father pointed out that while at GMH, his son's condition was rapidly deteriorating through the night and into the morning, and that no doctor had come to his son's room in the 12 hours preceding his death.
A report by the U.S. Centers for Medicare and Medicaid Services from a surprise inspection of GMH in 2019 confirms Lubofsky's claims and states on numerous occasions throughout the 12-hour period that the medical and nursing staff attending to the boy erred and did not follow hospital protocols.
Mr. Lubofsky has been looking for justice since. He has filed several complaints against the attending doctors and nurses with the island's physician and nursing regulatory bodies that have either been dismissed or gone unanswered. He also filed the suits in local and federal court, the local suit being dismissed because of the MMMA Act.
"As you know, the Guam Mandatory Malpractice Arbitration Act has plagued the health care consumers on Guam for decades," Mr. Lubofsky said. "Unlike any such law in the states, the MMAA protects doctors and other medical professionals who are negligent in the medical care that they provide leading to injury or death of our loved ones on Guam."
The current MMMA Act states no one on Guam can bring a lawsuit against a healthcare provider for medical malpractice unless the grieving party first goes through medical arbitration at the expense of the grieving party. That expense begins at around $40,000 to $60,000 in upfront costs, making arbitration unaffordable for the poor and middle classes.
Lubofsky isn't the only grieving party or resident who looks forward to changing the law so that poor and middle class citizens have access to due process through the courts. Others throughout the years have tried to challenge the MMMA Act on the grounds that it violates every citizen's constitutionally-protected right to due process.
U.S. District Court Judge Ramona Manglona made it clear, in an order in the Lubofsky case, that if the MMMA Act were to be interpreted by the Guam Supreme Court to force medical arbitration on a grieving party that cannot afford it, then the MMMA Act would certainly violate the Constitution's 14th Amendment.
"It would be manifestly unfair to enforce the statutory requirement against a person financially incapable of arbitrating. Doing so would have the absurd result of prohibiting the poor from recovering on a claim they might be otherwise entitled to. It would likewise shield the health care industry from ever owing liability to the underprivileged," the judge wrote.
Lubofsky for the past two years has been trying to get this message across to the Guam Legislature. Two days ago, Ms. Terlaje and Ms. Taitague heard his pleas, and introduced Bill No. 430, which will remove the due process impediment in the law.
"I want to thank Senator Therese Terlaje and Senator Telo Taitague who for a long time have been working on this new Bill No. 430 for introducing it today. Other senators have refused to answer emails from me regarding this issue and did not want to meet with me to discuss it. It's been two years of prayers and pushing to change this law to protect Guam's families with the ultimate goal of improving health care." - Lubofsky
If approved, Bill No. 430-35 (LS) allows a claimant (plaintiff) to file their claim in court where a Magistrate Judge is responsible for determining whether there is evidence to support the conclusion that a healthcare provider (defendant) failed to comply with the appropriate standard of care. The Magistrate Judge may consider expert testimony, and shall keep the complaint, proceedings, and opinion sealed until 30 days after issuance of opinion; however, the Magistrate may order the opinion sealed temporarily for an extended period or permanently upon agreement by the parties, if a trial is not pursued. Either party may pursue their right to a jury trial within 30 days after the Magistrate Judge renders his or her opinion by notifying the court of the party’s intent to proceed to trial.
"The successful passing of this Bill will not only protect our loved ones but will make sure those who injure or kill us are identified before they can do the same thing to another loved one. As things stand now, doctors have no accountability and are back to work putting the next patient in harm’s way with no reporting of incidents or deaths. This is of major concern as research shows that malpractice is a repeat offense usually with just one percent of doctors linked to 32 percent of malpractice settlements paid out between 2005 to 2014. This is why it's so important to identify those who hurt or kill us before they go on to the next loved one." - Lubofsky
Additionally, parties may at any time by mutual consent, submit their dispute pursuant to the provisions of either the Guam International Arbitration Law or Guam’s Mediation statute. Claims against any defendant that is for $10,000.00 or less shall be exempted from the new legislation if they are filed with the Small Claims Division.
“Given that we are nearing the end of the term of the 35th Guam Legislature, it is our intention to immediately enlist public feedback but it is likely additional hearings on medical malpractice reform will have to be further pursued in the 36th Guam Legislature. We value the input of everyone in the community and look forward to further discussion regarding this legislation,” stated Senator Therese Terlaje.
Last year, the 35th Guam Legislature – through the leadership of health committee Chairperson Therese Terlaje – held a series of informational hearings on Guam’s MMMAA. The very difficult but necessary dialogue brought to light legitimate concerns from families of alleged victims about the high cost of the arbitration process serving as a barrier to asserting viable medical malpractice claims and to the pursuit of justice. We also heard the concerns from doctors that a repeal of current law may increase frivolous lawsuits, potentially increase malpractice insurance costs, deter doctors from providing emergency care outside their specialty, and ultimately impact the quality and extent of patient care they provide.
“Following the hearings, I have been working diligently, to consider alternative pre-trial procedures used in other jurisdictions and to draft viable and balanced legislation for Guam that takes all concerns into account, as much as possible yet provides some justice for those who cannot afford arbitration,” stated Senator Therese Terlaje.
“Senator Therese and I introduced Bill No. 430-35 (LS) after many months of research and discussions with families of medical malpractice victims, healthcare providers, and a series of public informational hearings conducted by the legislature. This measure prioritizes access to justice for victims and fairness for Guam’s medical community, particularly after the U.S. District Court of Guam recently issued an order asking the Supreme Court of Guam, ‘is failure to comply with the MMMAA’s arbitration requirement equitably excused when an indigent party cannot reasonably afford the non-administrative fees of any organization authorized to arbitrate under the Act and no alternate means of completing arbitration is available?” Senator Taitague stated.
“It appears the constitutionality of the MMMAA is in question. If there is a determination by the court that the MMMAA is unconstitutional, healthcare providers could be left vulnerable to baseless medical malpractice lawsuits which would harm not only their practice but the broader healthcare system on Guam. Bill No. 430-35 (LS) protects a victim’s right to legal action – while ensuring that a medical malpractice case is properly reviewed before moving forward through the court system, mediation, or arbitration.” Senator Taitague further stated.