The Guam Memorial Hospital Authority has agreed to pay the parents of 5-year-old Asher Lubofsky $200,000 as settlement for the death of their child, the maximum currently allowed for wrongful death under the Government Claims Act. 

Lubofsky was admitted to the emergency room at GMH the morning of Oct. 30, 2018, with complaints of a two-day-long fever and shortness of breath. He was first seen at the Seventh-day Adventist Clinic but was reportedly unable to see a doctor at the clinic.

The boy's condition would worsen by the early morning hours the next day. Then, just a little past 7 a.m., Lubofsky would be pronounced dead. His death certificate attributed the cause to a generalized viral infection.

U.S. Centers for Medicare and Medicaid Services investigated the case, along with three other complaints, during a weeklong visit to GMH in mid-2019.

GMH has implemented corrective measures, but these initiatives, including the creation of policy on the use of the Pediatric Early Warning Score, used to measure and predict a child's clinical status, were not completed until June 2019.

There was no effort to implement policy improvements immediately after Asher's death, nor was the case evaluated despite a requirement to do so, according to CMS' notes of interviews with hospital staff.

Lubofsky's parents filed a claim under the Government Claims Act against the hospital in early 2019, alleging that GMHA failed to properly diagnose, monitor and treat their son's medical condition. 

They sued GMHA later that year after the claim was left unanswered. For claims involving monetary damages, Guam law allows claimants to take their issue to the Superior Court after six months of initially filing a claim under the Government Claims Act.

Claim caps were recently raised via Public Law 35-111. Payments under the claims act are taken out of a government fund. 

A separate lawsuit was brought against SDA.

Arbitration required 

For private entities, the Medical Malpractice Mandatory Arbitration Act governs medical malpractice claims.

The lawsuit against SDA challenged the constitutionality of the arbitration act, but the law was ultimately upheld and the claim is now subject to mandated arbitration.

However, the court did acknowledge that Guam's law places the burden of keeping costs low and maintaining affordable health care "on one small and vulnerable sector of society, namely nonwealthy victims of medical malpractice."

At the District Court of Guam level, a question was raised in an unrelated case about whether the arbitration requirement could be "equitably excused" when an indigent party can't afford fees and there is no other way to complete arbitration.

The question remains unanswered, however, as the specific parties for that case pursue arbitration or mediation. The defendants had offered alternatives to the law's mandates in an effort to reduce arbitration costs. 

But the arbitration act may not stand long regardless, with the introduction of Bill 112-36, legislation that would replace mandatory arbitration with a confidential pretrial screening process.

The bill has proven controversial. Many Guam doctors have opposed the measure, claiming it would adversely affect health care on island with fewer providers wanting to work here. But lawmakers have also heard from individuals who argue that arbitration costs are detrimental to pursuing legitimate claims.

Lubofsky's father, David Lubofsky, has been active in calling for a change in the current law. 

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