Every now and then, the Guam Legislature comes up with proposals that bitterly cleave the local community and draw full force from both camps into the public hearing room. Bill 112-36 is one of those.
Introduced by Speaker Therese Terlaje, Bill 112-36 seeks to make it less difficult for patients to sue for medical negligence and malpractice. Under the current law, anyone who wishes to file a malpractice claim is required to seek arbitration, which entails an estimated cost of $50,000 in arbitration fee.
Supporters of Terlaje’s bill say the current process creates an impediment for those who cannot afford to shoulder the arbitration cost, making the exorbitant justice unattainable.
Bill 112-36 proposes to amend the Guam Medical Malpractice Mandatory Arbitration Act by replacing the three-member arbitration panel with a magistrate who would screen malpractice claims and weed out frivolous claims.
“Bill 112-36 removes the mandate to arbitrate under specific, costly terms dictated by law, allowing medical professionals to agree with the claimants on reduced costs by deciding how many or what type of arbitrators will sit on the panel based on the Guam Arbitration Act,” Terlaje said.
The bill has spawned different interpretations, with doctors dismissing it as “bad medicine.” Medical professionals are not pleased with the proposed reform, saying that removing the arbitration process would open the floodgates for medical litigations and lead to an increase in medical malpractice insurance.
In written testimony, Dr. Marianas Cook-Huynh characterized the bill as misguided. It only created tension between senators and doctors at the time when they were supposed to be working on real solutions to the ills of Guam’s health care system, she added. “In my opinion, the legislature is missing the big picture,” she said. “Senators need to switch their focus. Rather than removing arbitration, we need more emphasis on prevention.”
The raging debate has also caused friction between the medical sector and the local community.
Some doctors have threatened to either stop providing services or leave Guam if the bill were to become law. With Guam being a small island, health care options are already limited and the possible exodus of medical professionals could worsen the situation, the doctors warned.
“Threats from doctors to cut off medical services are very concerning and extremely disappointing and frightening for the entire community, but my hope is to address the impetus for these threats through the public hearing process and through the debate on the session floor,” Terlaje said in an interview.
“I continue to come forward in good faith and am listening very intently to the concerns from health care professionals, but I am also listening to the tragic stories of patients in our community, as well as their family members. If we are sincere about reaching a consensus on reform, we must focus on the facts and minimize any potential impacts of proposed policy against the need to restore justice,” said Terlaje, who is a lawyer.
After hearing input from the public and the medical community, Terlaje said she was open to revising Bill 112. “We are considering a requirement to notify the other party prior to filing, another provision to reiterate that apologies are still protected as in current law, and expanding Guam’s informed consent law to better protect patients and doctors,” the speaker. “I appreciate the many thoughtful suggestions and am considering them thoroughly.”
The speaker thanked those who supported the bill. “I think a great many people are following along with great interest during the public process hoping to gain more knowledge about the current law and the proposed bill,” she said. “Some have been directly affected by malpractice with a deep sense of loss and tragic stories.”
She deplored that some doctors mistook the bill as a personal attack on them. This was not the bill’s intent, Terlaje said. “However, the tremendous level of engagement we are receiving reminds us of the importance of this bill and why it was introduced, to correct an injustice in our laws for those who have been affected by medical negligence.”
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Terlaje explained what the proposed reform would do. “The bill also allows for mediation, which is not allowed under current law. If the parties do not agree to mediation or arbitration, the claim will be screened by a magistrate judge without the need for arbitration filing fees or arbitrator costs,” she said. “Expert medical witnesses will continue to be hired by each party and their testimony presented to arbitrators, mediators, or magistrate prior to trial just as is done in the current arbitration process.”
At a public hearing on July 8, Terlaje noted that the current law was passed “with the intent to provide a timely and cost-effective process for patients and medical professionals to address medical malpractice claims.”
However, she said the law has instead created a hindrance for those with limited resources to seek redress for their “very real tragic experiences” resulting from medical malpractice or negligence. “They have been forced to live life-long debilitating conditions, or worse, forced to live without justice, accountability and peace long after burying their loved ones,” Terlaje said.
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