Judiciary not thrilled about pre-trial screening mandate
Guam doctors slam the controversial Bill 112-36 as bad medicine. On the other hand, the bill’s main author, Speaker Therese Terlaje, defends her proposed legislation as a prescription for the ills of the current medical malpractice and arbitration law.
Bill 112-36, which seeks to make it easier for patients to sue for medical negligence and malpractice, hit a sensitive nerve ending. It triggers a recurrence of the familiar bickering between the senators and doctors, who often clash over health care issues.
The raging debate over Bill 112-36 is reaching the height of animosity. At times, it gets trivialized by name-calling. As far as doctors are concerned, senators have no business interfering with medicine.
“Bill 112-36 is not meant to attack anyone or demonstrate a lack of gratitude for our heroes during the pandemic,” Terlaje said in her opening remarks at the bill’s public hearing Wednesday.
Terlaje said the bill has been widely misunderstood. The bill’s intent, she said, is to mitigate the cost of arbitration and eliminate the barriers for patients, who cannot afford the mandatory $50,000 arbitration cost currently provided by the medical malpractice and arbitration law.
“The law was passed with the intent to provide a timely and cost-effective process for patients and medical professionals to address medical malpractice claims,” Terlaje said.
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.
“Current law serves the privileged few who can afford to pay the high cost of arbitration, and the medical professionals are fully protected because the high cost of arbitration serves as a deterrent to patients from pursuing their cases,” she added.
Terlaje sought to clarify the doctors' argument that the bill, if passed into law, would lift the screen and push a medical claim straight to court.
Doctors warned that the bill would open the floodgates for medical litigations.
But Terlaje said Bill 112-36 would keep the screening policy in place to protect doctors from frivolous lawsuits.
The current law requires a three-member arbitration panel to resolve medical malpractice claims. The bill would replace the arbitration panel with a screening overseen by a magistrate judge.
On the judiciary's side, Supreme Court Chief Justice Phillip Carbullido said the courts are not equipped with financial or manpower resources to meet the pre-trial screening mandate of Bill 112.
"Without adequate funding to support the required resources, the magistrate judges will be unable to effectively and efficiently conduct pre-trial screening and processing of malpractice claims as contemplated by Bill 112," Carbullido said in a letter to Vice Speaker Tina Muna Barnes.
"The complex nature of medical malpractice claims would likely require the hiring of expert witnesses and/or master's, which would involve significant costs. The costs of expert witnesses and masters are usually assigned to the parties under existing court rules. The judiciary should not be expected and does not have the means, to shoulder these costs," Carbullido said.
In a statement posted on Facebook, Dr., Thomas Shieh said Bill 112-36 would not raise the standard of care on Guam. The bill “does nothing to bad doctors, but it harms good doctors and hinders patients access to care,” he added.
“The propaganda out there has influenced Speaker Terlaje and pushed by Senator Telo, thinking that they are doing something good for Guam by suing good doctors,” Shieh said.
At Wednesday’s public hearing, Dr. Carla Haddock read written testimony from Dr. Marianas Cook-Huynh, who opposed Bill 112-36.
The bill, Cook-Hyunh warned, is likely to do more harm than good to Guam’s health care system because it will result in the exodus of doctors.
“Bill 112-36 could be creating bad outcomes by worsening our vulnerable patients’ access to care,” she said.
Cook-Hyuhn 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.”
While medical procedures might sometimes result in “tragic and unfortunate outcomes,” Cook-Hyunh said, it did not always mean they were the result of bad medical practice.
Testifying in support of the bill, former senatorial candidate Ken Leon Guerrero said the medical field “is a business with an unfair advantage over other businesses on island.”
“Doctors are humans. Mistakes, accidents and negligence happen,” Leon Guerrero said. “When they make mistakes, it’s not the doctors who suffer and shoulder the medical cost; it’s the patients. This is not meant to punish doctors but to recognize that there are good doctors and bad doctors."
A competent and meticulous doctor "need not fear malpractice," Leon Guerrero added.
Dr. Joel Joseph, a veterinarian who owns Wise Owl Animal Clinic, said the introduction of Bill 122-36 has prompted him to shut down the emergency treatment service at his clinic.
Emergency treatments are more prone to litigations, he said.
“The bill will make us turn into punching bags,” he said. “Bill 112-36 opens us to petty grievances, whether legitimate or not.”
Joseph also noted that the bill, in its current form, does not include a statutory limit on claims. It thus allows the filing of complaints involving incidents that might have taken place prior to the bill’s enactment.
The public hearing will continue on July 12.
The bipartisan Bill 112 was cosponsored by Sens. Telo T. Taitague, Joanne Brown, Joe S. San Agustin, V. Anthony Ada, Telena C. Nelson, Christopher M. Duenas, Clynton E. Ridgell, Amanda L. Shelton, Jose Pedo Terlaje and Sabina F. Perez.
Following are excerpts from those who came in support of the bill.
“The National Practitioner Data Bank does not record how many lawsuits or malpractice suits have been filed. It is actually how many cases have been completed and deemed malpractice. There is a big difference, so please know it,” which means that claims filed with a Magistrate Judge would not be reported prior to judgment."-- Dr. Stan Yasuhiro
“I am here to support this bill. These doctors need to be accountable for their actions.” – Walter Duenas
“Bill 112 is a good start – need to bring in all the right stakeholders who have all the right information to craft the best policy possible.” – Dr. Ron McNinch
“I believe that the problem we are debating is whether we prioritize the health and access to care of the community at the expense of the individual or do we prioritize the individual’s access to due process at the expense of the community?” – Dr. Alexandra Leon Guerrero
“Would you pass Bill 112-36 if you knew it would save a child’s life or several lives on Guam? Well, this bill if law would have saved Baby Faith and if not would have identified her doctor and others before she or they went off to make the same tragic mistakes with others. This bill is about saving lives not saving money for doctors. Not passing this means we have to sacrifice our loved ones on Guam and there is clear statistics that support this.” – David Lubofsky
“Despite these complexities, we stand in support of the bill and its intentions to provide a more equitable means for the people of Guam to file medical malpractice claims. Especially, we support this bill due to its design for fair, impartial and financially accessible methods for all members of the community who seek protections.”.” – Rosario Perez