To paraphrase the late Christopher Hitchens on religion, “Government intervention spoils everything."

Samuel Friedman

Samuel Friedman

There has been some controversy lately on Guam over the treatment of malpractice claims, with both sides of the controversy having some merit. To be sure, most physicians justifiably fear more liberal laws on malpractice suits citing the circus in the USA with innumerable unnecessary and unprovable lawsuits mounted by largely unsophisticated patients and families and lawyers looking for a fast dollar. Even though many of these cases find for the accused, there is an incredible emotional toll on the physician, pushing many to just quit medicine, or at least the locale where many of these suits are filed. Finally, the incredible settlements that a sympathetic jury may afford a patient are eye watering and unique to the broken legal system of the United States.

On the other side, patients who are indeed injured by poor medical care should be able to seek justified monetary settlement for their injuries and increased cost of care if that injury results in a handicap necessitating lifelong attention, and be able to afford such legal help.

The current Guam policy of malpractice address suffers from two deficits. The first is the limit on malpractice settlements of $100,00 and $300,00 for death or injury if by the hands of a GovGuam employee, such as at the Guam Memorial Hospital Authority. If there has been a real injury, that amount of compensation is a pittance for the handicap and suffering that the patient may experience over time. The second flaw is the Guam arbitration protocol that is mandated for settlement. While arbitration is indeed preferable to a trial, the procedure that the injured party must front for the cost of such arbitration is prohibitive for most residents of Guam; the procedure for this arbitration necessitating imported experts and opposing legal teams is indeed costly.

So, what would be a viable alternative that would reduce costs, remove the emotional element a lawyer would like to have on a jury, and streamline the process with fairness to both sides? I propose a panel of three local, competent physicians to hear the case which can indeed be assisted by, but preferably without, attorneys. The patient (or attorney) can present his arguments and be countered by the defendant(s) (or attorney) and adjudicated by the physician panel. Expert witnesses can be called by both sides if wished, but should rely upon local talent. If the panel finds in favor of the patient, the monetary settlement can then be arrived at with some assistance by tables that arbitrators do use. The patients injured by GovGuam employees would have the same rights to a fair settlement. Should either side oppose the judgment, then the ability to proceed with a court trial could be requested but this panel judgment would be part of the evidence against the requesting party.

Simple, speedy, low cost, efficient and a solution that would be fair to both parties. Hence it has the chance of a snowball in hell of something similar being approved by the current government.

Dr. Samuel Friedman is the director of the Cancer Center of Guam in Tamuning.

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