Guam medical board slammed for giving errant doctor a slap on the wrist over the death of a 5-year-old

Asher Dean Lubofsky

By Jayvee Vallejera

The Guam Board of Medical Examiners may have reprimanded a doctor over the death of five-year-old Asher Dean Lubofsky at Guam Memorial Hospital, but bureaucratic indecisiveness continues to hinder the true justice sought by his father for almost six years.

It took the board nearly six years to decide a case that should have taken only nine to 12 months, and the boy's father, David Lubofsky, suspects an effort to conceal the board's decision from the public.

“Six years is unacceptable. I believe they hoped I would disappear," Lubofsky said. "Allowing a doctor to continue practicing for six years during an unresolved complaint, especially the death of a five-year-old, puts patients at risk. The process felt incompetent or corrupt."

He said the complaint against Dr. Dennis Sarmiento was not just about his son, who passed away at GMH on Oct. 31, 2018.

“It became about the long list of families who came after us, who walked into GMH and into the same broken, corrupted system where justice was too hard to find,” Lubofsky said.

David Lubofsky

“The board’s vote was an official act of a government body and the public has a right to know when the board has determined that a physician’s conduct requires discipline,” Lubofsky said.

He filed his complaint against Sarmiento in September 2020, alleging wrongful death due to substandard care or medical negligence. The board voted in April this year to complete the investigation.

After persistent requests in May, the board finally provided Lubofsky with a copy of the notice of disciplinary action against Sarmiento.

According to the notice, the board had determined that evidence and documentation indicated that the Physicians Practice Act had been violated.

It issued three disciplinary actions: a public letter of reprimand that Sarmiento is required to maintain permanently in his licensing file; completion of a Physician Assessment Program; and payment of investigative fees incurred by the board.

Lubofsky describes these sanctions as a slap on the wrist. He also noted that the board's decision lacked clear guidelines for enforcing the proposed sanctions against Sarmiento.

Lubofsky said the recommendation regarding the Physician Assessment Program was discussed at the board’s April meeting, where members agreed to consult with the Federation of State Medical Boards on appropriate actions.

“Even this part of the process is vague. Families are expected to trust a system that cannot clearly explain its own requirements,” he said.

Lubofsky also criticized the board for a lack of transparency.

He said he wasn’t even told about the board’s April decision and learned about it only after listening to the recording of the meeting.

This is not how a regulatory body should operate, he added.

The board had declined his request to see the decision and the corresponding documents, stating that the matter was being kept confidential for now.

The board said the documents in question— a consent agreement or a final disciplinary order—must first be finalized and signed by the board's chairperson, legal counsel and Sarmiento before being officially filed.

Breanna Sablan, acting health professional licensing/EMS administrator, said that disciplinary actions become matters of public record only after the final order is fully signed and formally entered.

“Until that administrative step is complete, the specific details remain confidential,” she said in an email to Lubofsky.

Lubofsky was not convinced, noting that the board had already voted to issue a public reprimand against Sarmiento.

“I do not understand how a public reprimand can be treated as a secret document. This is exactly the kind of obstruction families on Guam face when they try to get answers. This is one reason it took six years,” he said. 

In a letter sent to the board, Lubofsky argued that a public reprimand is a final disciplinary action, not an investigative document. Once the board votes to discipline a physician, that action becomes part of the public record.

He mentioned that Dr. Nathaniel B. Berg, the board’s chairman, described it as the longest complaint investigation in the history of Guam, or even the country.

“I believe they hoped I would walk away," Lubofsky said. "No family should have to wait six years for a decision about their child’s death."

Berg and Sarmiento have not responded to the Pacific Island Times' request for comment as of this writing.

Across the U.S., medical board complaints usually average about nine months, Lubofsky said. Many states complete cases in three to 12 months. Very few exceed 18 to 24 months.

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Lubofsky said that, aside from excuses, there was never a plausible explanation for the board's delayed action on his complaint.

In the last seven years, he said, more than 70 complaints have been filed with the board, and not once has it ruled in a patient's favor. “That is statistically impossible,” he said.

His efforts to seek the senators' assistance proved futile as well, Lubofsky said. There were a few oversight hearings, but the interest in the case fizzled out in the last three legislatures.

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