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

Lawmakers held the third and final scheduled information hearing on the Medical Malpractice Mandatory Arbitration Act Thursday night, wrapping up three months of discussion on the subject.

While the past hearings focused on the basics of the law and the perspective of the medical community, the public had the opportunity to voice its recommendations on Thursday, rendering some guidance to lawmakers as they decide the fate of the MMMA Act.

Law requires arbitration instead of malpractice lawsuits

The law requires arbitration in the event of a medical malpractice claim. Critics say it blocks access to the courts behind costly arbitration. 

For David Lubofsky, the father of the late Asher Lubofsky, the answer is to repeal the arbitration act and have all cases go directly to court.

But he did propose an alternative, which would "allow 3 years to file a malpractice case as in most places." There should be a cooling-off period of six months once the case is filed, in which claims are to be submitted for review and mediation can happen, but is not mandated. 

The doctor or clinic would be responsible for all costs, or costs can be covered by a fund, Lubofsky said. 

If there is no resolution after six months, the case proceeds to court via a conciliation process, which requires the plaintiff to submit an inquiry to a panel consisting of one attorney and one licensed physician not from Guam, Lubofsky said.

There should also be no financial caps on lawsuit awards, he added.

Doctor: ‘One lawsuit can bankrupt me’

Dr. Teresa Underwood, from Center for Women's Health, said it was difficult to practice on Guam as an obstetrician-gynecologist due to low Medicaid reimbursement rates, delinquent payments and other issues. 

"If you repeal the arbitration law and there's no protection for doctors, ... one lawsuit can bankrupt me. Malpractice for OB-GYN is almost $50,000 a year," Underwood said. "I can't afford that. ... I would be forced to close my office and leave Guam."

There is a shortage of OB-GYN doctors on island, and in the U.S. as a whole, she added.

Underwood's statements echoed concerns from doctors in last month's information hearing who argued that the arbitration act served as a recruitment and retention tool by decreasing the costs of practice.

Without arbitration, will already scarce doctors become even scarcer?

There has been staunch opposition from the medical community to repealing the law and almost all attendees of Thursday's hearing were health care professionals.

"We're losing providers for women's health care here. If there's no protection for doctors here, I won't be able to afford to practice here paying such high malpractice rates, which are going to get higher. I will end up leaving, and so will other doctors," Underwood said.

"And you’re wrong, a lot of doctors don't want to come here. ... Many doctors have tried to find partners here and they haven't been successful for many years," she added.

Doctors, critics agree: Arbitration is too expensive for claimants

However, the high cost of arbitration – reaching tens of thousands of dollars – and its potential barrier to legitimate malpractice claims, appears to be one area of agreement between doctors and critics of the law.

"Because of this, we propose an Access to Medical Arbitration Fund, for people who wish to file a malpractice claim. This fund would be used for the sole purpose of assisting a petitioner with the cost of arbitration filing fees and arbitrator fees," said Dr. Erika Alford, who on Thursday night detailed funding legislation, developed by herself and fellow doctors.

Doctors: Set up a fund to help people bring arbitration cases

In their proposed measure, the Arbitration Fund would be administered by the Office of the Attorney General and would be supported by a portion of health professional licensing fees, as well as a $100,000 initial deposit from the government of Guam. 

To qualify, the petition must meet certain income asset criteria, such as eligibility for assistance under the Medically Indigent Program. An application would be submitted to the Office of the Attorney General and the petitioner is to participate in a review of the claim by a hearing officer appointed by the AG. 

The officer would issue a certificate of qualification that the claim would have a reasonable probability of success.

With approval and a certificate, the fund would then pay the arbitration filing fee and/or arbitrators fees, but a lien would be created against any settlement, award or judgment, to be paid prior to disbursement of proceeds. 

"We hope you consider our proposal. We hear the community's complaint that medical arbitration costs is insurmountable for many. With a fund created and funded by health care professionals for those who need assistance, medical arbitration will not discriminate (against) those who cannot afford the filing costs and arbitration fees," Alford said. "We feel the medical arbitration law should stand."

Senator: Why should GovGuam pay?

Sen. Telo Taitague, questioned why GovGuam would need to pay $100,000 into the fund when the Government Claims Act already addresses the government, and the fund would cover doctors under private practice. 

"My question to you is are you amenable to providing a fee to doctors who practice on Guam yearly to fund that fund, instead of using government of Guam funding," Taitague said. 

Alford said the $100,000 was seed money and the licensing fees would amount to an additional $100,000 for the fund. The measure would address claims with merit and the lien would regenerate funding, she added. 

Attorney Robert Keogh, who has litigated arbitration and malpractice claims, said some mechanism – such as a screening panel – needed to be created for claims to be heard less expensively.

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