Senators take advice on malpractice law

ASHER: Asher Lubofsky is shown in a social media post by his father, David Lubofsky. Asher Lubofsky died on Oct. 31, 2018. Photo courtesy of David Lubofsky

The father of Asher Lubofsky, the 5-year-old boy who died suddenly after coming home from the Philippines, is asking Guam lawmakers to take another look at the island's medical malpractice arbitration law.

"I realize that it is too late for our beloved son, Asher, but it’s not too late to protect other children and families on Guam. The law has many issues, but the primary problem is that it presents an unfair bias against Guam families or claimants of limited financial ability," the father, David Lubofsky, said in a letter to all senators.

Without funding to pay for arbitration costs, poorer residents may be prevented from making a claim or having their day in court, Lubofsky added.

The Guam Daily Post reached out to lawmakers and doctors regarding the law and Lubofsky's letter, but none have provided comment. 

The current arbitration law is several pages long, but at its core, it simply requires that any medical malpractice claim pursued on Guam go through mandatory arbitration – an out-of-court procedure to settle disputes.

If a claim is brought to court first, any party can ask to hold proceedings in order to arbitrate. Following that, any party can appeal the arbitration results and request a trial. 

Robert Keogh is a personal injury lawyer who has taken on a few malpractice arbitration cases. He is representing Lubofsky in a government claims case against Guam Memorial Hospital. 

According to Keogh, the American Arbitration Association is the only company available to perform such services, and their fees can reach several thousand dollars. Claimants also have to consider payment to arbitrators.

The entire process could cost claimants between $30,000 and $50,000, Keogh said. Doctors, or other types of medical providers, implicated in the claim must pay their share as well, he added.

"Some people can (pay), some people can't," Keogh said. "Our primary objection to it is that it is time-consuming and it is expensive."

The mandatory arbitration law was enacted in 1977 but was repealed and re-enacted following the 1984 court decision in Awa v. GMH declaring the old law unconstitutional. 

The bill that would become the new law received overwhelming support from several doctors and organizations, including the American Arbitration Association.  

However, the law was declared inorganic by the Superior Court of Guam in 2003 in the case between Carmen and Romy Laguana and the Marianas Physician Group.

The lower court determined that the law violated the separation of powers doctrine, but the Supreme Court of Guam overturned that decision in 2004. 

The higher court, however, left open the matter of whether the arbitration law violated the Laguanas' rights to a jury trial and free access to the courts, as well as their due process and equal protection rights.

The parties ultimately agreed to dismiss the case in August 2005, but the equal protection and due process issues were addressed in a decision in January of that year.

The Superior Court determined that mandated arbitration did not violate equal protection rights, due process or entitlement to a jury trial.

The court found that based on various court decisions, the plaintiffs – the Laguanas – bore an "extremely high" burden when challenging the law, in which they would have to negate "every conceivable basis" that might support it. 

By contrast, the law merely needed to have a reasonable or rational relationship with legitimate government interest to be upheld.

It was clear that mandatory arbitration was "intended to address the rising cost of malpractice insurance and to help provide for the prompt, efficient and effective resolution of medical malpractice claims," the decision stated.

The court found that this aspect, as well as others relating to the law, held legitimate government interest in reducing malpractice costs. 

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