Board: No violation found in child's death

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

The parents of a 5-year-old boy who died suddenly after coming home from the Philippines have filed an $11 million lawsuit against a doctor and physician assistant at the Seventh-day Adventist Clinic, as well as the clinic and its insurance company.

The parents also are asking the court to find Guam's Mandatory Medical Malpractice Arbitration law – which would otherwise require the claim to proceed with arbitration – to be inorganic and unconstitutional.

The defendants had medical malpractice insurance, according to the suit. The company is listed as John Doe Insurance in the suit.

A separate government claim had been filed against Guam Memorial Hospital, where the boy died.

Asher Lubofsky died in October 2018 from a generalized viral infection.

Prior to his death, Lubofsky was seen by Dr. Shishin Miyagi at the SDA Clinic for an annual physical. The boy had a recurring fever, was vomiting and had a raspy voice, but his parents were told nothing was wrong with him, according to the suit filed at the Superior Court of Guam.

Lubofsky would need urgent medical attention the next day.

He was brought into the clinic again and assessed by Ethan Snider, a physician assistant. Snider reportedly told Lubofsky's father that his son should be taken to the hospital.

The father, David Lubofsky, asked for a referral so he could take his son to GMH without delay but Snider allegedly refused and said SDA did not provide referrals, the suit states. Snider also allegedly denied the father's request to see a doctor because the doctor was busy at the time.

Asher Lubofsky was taken to the hospital by his father and was admitted into the emergency room. He died the following morning.

Miyagi, Snider and the SDA Clinic are named in the suit as failing to perform a wellness check, provide appropriate and timely care, and give appropriate medical advice in addition to other accusations.

"As a direct result of the actions of defendants Dr. Miyagi, Snider and the SDA Clinic, Asher met a tragic and untimely death," the suit states.

'Differing recollections'

David Lubofsky said he and his family were not interested in a lawsuit or legal battle following his son's death. They initially asked for the individuals involved to face repercussions at SDA, he added.

The father said he met with Dr. Tim Arakawa, the acting medical director at SDA, the week his son died. They would meet again about two months later to follow up, he added.

Two words from Arakawa ultimately led to the decision to sue: "differing recollections."

David Lubofsky said Arakawa told him that Miyagi recollected events differently regarding his treatment of Asher Lubofsky the day they arrived for the physical.

"I asked Arakawa, 'How can you say that or believe him?' when (Miyagi) never touched my son and gave my dying boy only 20 minutes of his time, and part of that he was out of the room, only explaining weight and body mass info and discussing immunization," Lubofsky said.

"Those two words, 'differing recollections' ... put us into legal proceedings. We never wanted money, as that can't bring back Asher – we wanted responsibility and actions to protect others."

Snider's last comments also ring in David Lubofsky's mind. Lubofsky had asked to see the doctor, but the physician assistant allegedly told him that the doctor was busy and allegedly threatened to call the police if Lubofsky didn't take his son to the hospital.

David Lubfosky said his son would later ask why the police would be called on them.

"I can still hear him asking it through his raspy voice and breathing problems," Lubofsky said. "Imagine that a PA threatens a dying child and a distressed family."

Suit: Law violates Organic Act, Constitution

The suit also claims that the medical malpractice arbitration law violates due process and equal protection rights, as well as privileges and immunity clauses of the Organic Act and Constitution.

It discriminates and penalizes plaintiffs as tort victims of health professionals, health care institutions or their agents, with respect to their right to go through the legal process without first proceeding with expensive arbitration, the suit states.

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