Editor's note: This is the first of a two-part series on the challenges of holding medical practitioners accountable under Guam's medical malpractice law.

Aiden Quaile was born on Aug. 26, 2011, to parents Michelle Green and Leonard Quaile. The boy was 8 pounds and healthy, save for a mild case of jaundice, which was treated at the hospital. He was Green's firstborn.

About a month later, Aiden suddenly fell ill. He was taken to the FHP Urgent Care Center. His mother waited more than an hour before seeing a physician's assistant in the examining room. She was told Aiden had simple colic, excessive crying that normally doesn't indicate health issues, according to court documents.

But Green wasn't convinced. She said she begged the physician's assistant to call the hospital or an ambulance. The mother contends the clinic staffer did not. It had been nearly two hours.

Green drove to Guam Memorial Hospital herself. Hospital staff confirmed Aiden was not suffering from colic - he was in respiratory distress. Green held an oxygen mask over her son but a deep blue encroached on the baby's lips and nose. 

She screamed. Staff rushed in. Aiden was taken away. 

"I insisted on seeing him again and they told me I had to say goodbye to him," Green told the Post. "So I just held him."  

Aiden died on Oct. 1, 2011, a few hours after the baby was brought to the emergency room. His parents would file a lawsuit in federal court years later, raising negligence claims against health care providers and bringing into the spotlight Guam's three-decade-old Medical Malpractice Mandatory Arbitration Act. 

TakeCare Insurance has previously stated the negligence wasn’t on TakeCare's clinic, but rather on the baby's mother for her alleged failures to follow the instructions of health care providers, describe the child's health history, and timely follow the course of treatment and care indicated by health care providers.

There has to be accountability

The suit has since fizzled into settlement but two separate claims have emerged in the local court, both involving grieving parents, allegations of medical malpractice, claims for millions of dollars in remedy, and challenges to the constitutional validity of  Guam's mandatory arbitration act. 

"I'm really glad that the law is receiving attention now," Green said, speaking to the Post in early June. "Nobody really wants to sue doctors but these cases do have a deterrent effect. And when you go to this level ... there's actually no accountability. This is dangerous. This is unacceptable. There has to be some accountability." 

Guam law forces arbitration proceedings, an out-of-court process to settle disputes, in medical malpractice cases. The costs, which could reach tens of thousands, must be born by the parties. A party can take the case to court afterward, but it is that initial financial burden that opponents say imposes an unreasonable hurdle on individuals seeking relief.

Most states have some form of prelawsuit mediation, screening or review in medical care disputes - a safeguard against overtaxing courts with frivolous cases. Several states allow parties to enter into arbitration but very few require arbitration, and seemingly none as strictly as Guam.

Maryland, as an example, generally requires arbitration but this can be waived by either party.

Green characterized Guam law as "uniquely draconian" compared to other jurisdictions.

"No other jurisdiction puts the financial burden on plaintiffs to pay for three (American Arbitration Association) arbitrators; Maryland compels arbitration, but it is paid for out of a state fund. Other states have presuit mediation or other alternative dispute resolution requirements, but none preclude a fair determination of a medical malpractice claim like Guam’s," she wrote.

Frustration

When Green, a tax attorney, first attempted to challenge the law on Guam, she encountered few fellow lawyers who would take up her case. 

"I was literally laughed at. Nobody thought there was anything wrong with the Medical Malpractice Act. That it was just cut-and-dry," Green said.

She would find representation in attorney William Fitzgerald, but the pair later parted ways, leaving Green to litigate the federal lawsuit on her own. 

"I was at this crossroads. The lawyer in me wanted to go to trial, get the ruling, go to the 9th Circuit and appeal the law if that's what it took," Green said.

But she was concerned that a loss in the District Court could justify turning away people seeking to challenge the law. Green said she believed settlement would leave that door open. A $225,000 settlement was reached in Aiden's parents' malpractice claim.

"The next mommy who walked into (a lawyer's) office, it could just be another thing they could say, 'Actually the court just ruled on this. No, no, no you can't do it.' I felt like taking a settlement would at least might get the ball rolling with the other lawyers. That this argument might have some traction," Green added.

Challenging the law

One of the lawyers she initially approached was Robert Keogh, the same lawyer who is now challenging the mandatory arbitration act in the local court. 

Keogh could not speak about his interactions with Green, adding that his two new cases are separate circumstances. But Keogh has challenged the act before. 

"I can think of two times that I challenged it in the Superior Court of Guam over the last 15 years and both times the circumstances were such that the court disagreed with us," Keogh said. "On one of the cases, they sent it back for us to get a deep discount from the American Arbitration Association, which they gave us. The clients I had then could afford the arbitration, so they did. Now we have clients that cannot afford it. And we're going to challenge it again."

The two cases at the local court involve the death of a newborn and a young boy.

Parties in the newborn case will explore mediation, according to court documents, while the parents of 5-year-old Asher Lubofsky, are pushing through. 

The defendants in the case stemming from Asher's death, the Guam Seventh-day Adventist Clinic and others, are asking the case be halted pending arbitration — allowable by the mandatory arbitration law. 

There have, in fact, been multiple unsuccessful challenges to the law in the Superior Court, according to the defense.

But the constitutional and Organic Act challenges have not yet been decided by the Supreme Court, Keogh countered. 

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