MALPRACTICE ARBITRATION REPLACEMENT INTRODUCED GUAM
Author: Aarushi Sharma, NLU, Shimla
Abstract
Therese Terlaje and TeloTaitague reformed much awaited medical malpractice claims law with the addition of pre-trial screening to the whole process without touching the arbitration part of it. The Medical Malpractice Mandatory Arbitration Act requires arbitration for malpractice claims before the matter can be taken to court. Superior Court of Guam Judge Arthur Barcinas stated in one case that the act “places a burden of keeping malpractice insurance premiums low and maintaining affordable health care on one small and vulnerable sector of society, namely non-wealthy victims of medical malpractice.”
The procedure in this measure involves receiving a complaint by the Supreme Court or the District Court which is then followed by referring of the case to the Magistrate Judge who in turn will decide regarding matters of the complaint. If the Magistrate judge decides that the evidence supports the negligence did happen, the judge will set a monetary value to be paid to the aggrieved party.[1]
This law requires parties to go through the out-of-court procedure before malpractice claims can be brought before court. The Magistrate has the power to keep the complaint, proceedings and opinion on hold for 30 days after issuance of opinion but 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. Claims against any defendant that is for $10,000 or less shall be exempted from the new legislation if they are filed with the Small Claims Division. Doctors are not in favor of this law because it is a setback to healthcare access on the island.
Claims against the government of Guam and its agencies, such as Guam Memorial Hospital, are still subject to the Government Claims Act. The malpractice claim may be heard by a panel of three arbitrators — an attorney, a physician and a neutral arbitrator who is neither a doctor, lawyer nor representative of a healthcare or insurance company — not by a judge in civil or criminal court. The National Association of Consumer Advocates states: “Arbitration is a private system without a judge, jury or a right to an appeal. Arbitrators aren’t required to take the law and legal precedent into account in making their decisions. There is no appeal or public review of decisions to ensure the arbitrator got it right.”[2]
It all began with a complaint filed by the Taitagues in May 2019 seeking declaratory judgment and injunctive relief with respect to the application of the arbitration law, as well as general damages for the wrongful death of their child in the amount of $11 million, and other costs. The Taitagues argued that the costs and “unconsented” arbitration placed on them violates constitutionally and organically guaranteed fundamental rights, Cenzon’s decision stated.
Cenzon stated that it would be prudent for parties wishing to challenge perceived inequities in law to seek redress from the Legislature, “rather than from courts which are constrained by the plain language of the law. In this case, the plain language of the law mandates plaintiffs’ claims be submitted to mandatory arbitration.” This law according to some acts as a protective shield for doctors who injure or kill someone through medical negligence in the private sector. The doctors do not pay for their wrong-doing until the patient is capable of trying arbitration.
If a doctor negligently hurts or kills someone on Guam, no one will know it besides the victim and their family. Your doctor may have killed a child in the morning then sees your child after lunch. According to a complaint, Baby Ft. was born at GRMC as a twin.She developed an infection from an IV that went on for approximately four days. Orders were given over the phone primarily by her doctor. Labs were finally ordered too late and after days of suffering by this child, Baby Ft. passed away at about 6 days old.
She allegedly had improper medical care from a doctor who did not treat her face to face. If the parents cannot afford arbitration costs, like most of us, which would be around $60,000 easily, if not more, there is no reporting mechanism. The doctor walks free and not held responsible and the hospital has no accountability. Your newborn may see this doctor the next day. We have hundreds of such situations on Guam. Baby Ft. is the child of all of us.[3]There are doctors who have a history of alleged malpractice or inappropriate patient behaviour and come to Guam to do the same thing.
Reference
[1]John O’ Connor, “Malpractice Arbitration Replacement Introduced “, The Guam Daily Post, December 17 2020.
[2]John O’ Connor, “Malpractice Arbitration Replacement Introduced “, The Guam Daily Post, December 17 2020.
[3]David Lubofsky , “Letter : Guam Mandatory Malpractice Arbitration Act protects doctors , not community”, Pacific Daily News , November 24 2020.
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