The first in a set of hearings discussing Guam’s Medical Malpractice Mandatory Arbitration Act has been scheduled for today, according to Sen. Therese Terlaje.

Attorney Mitchell Thompson has been invited to present an overview of the law and a few relevant past cases, according to a release from the senator.

Thompson represents several health care providers, including the Seventh-day Adventist Clinic, which was sued by David Lubofsky, the father of the late Asher Lubofsky and who has repeatedly called for reform of the arbitration law.

The suit is under review at the Superior Court of Guam.

The attorney representing Lubofsky in that lawsuit, Robert Keogh, will be off island on Thursday, according to his office.

First hearing: Give senators, public a basic background

In an effort "to accommodate for any differing interpretation" of the law or the cases, Terlaje said she is also inviting lawyers who responded to calls for interest to help the Legislature examine the arbitration law. 

The goal of this first hearing, according to Terlaje, is to present lawmakers and the public with a basic background of the arbitration act, and prior cases interpreting such law.

To that extent, the attorney general was also invited to briefly discuss and distinguish law governing claims against the government and government health professionals. 

“Senators will be allowed to ask questions of the panel following the presentation or any testimony. Following the information from the lawyers, there will be an opportunity at the first hearing for a limited number of patients or the general public to comment,” Terlaje stated in a press release.

Second hearing: Effects of law on medical workers, patient care

The second hearing is scheduled for Oct. 3 and will focus on the impacts of the current law on the practice of health care professionals, whether the law ensures the appropriate standard of care on Guam, and the impacts of the law on the availability of qualified health professionals, the release added.

Terlaje stated that she invited the heads of the Guam Medical Association and Guam Medical Society to lead the health professionals’ panel. The second hearing will also allow limited testimony from patients and the general public, she added.

The senator is seeking suggestions for reform or arguments against reform following the second hearing, Terlaje said. 

Third hearing: Discussion of possible changes to law

A third hearing is scheduled for Nov. 7, in which the input will be more fully considered, according to the release. 

“The health committee is particularly interested in input as to whether the law can be improved to better protect patients and to ensure an appropriate standard of care. The third hearing will also allow testimony from patients and the general public,” Terlaje stated. 

The hearings are for informational purposes only, Terlaje added. No bill has yet been introduced to revise the law. If it were introduced, a separate hearing on that matter would still required. 

Lubofsky and others have called for reform of Guam’s mandatory arbitration act, which requires parties to first settle medical malpractice claims through an out-of-court process. Opponents argue the law places a costly burden on individuals seeking to hold medical professionals accountable and restricts their access to the courts. 

The current law is an amended version.

Attorney: Law obstructs a citizen’s right to trial by jury

Attorney Richard Pipes, who successfully challenged the original version at the U.S. 9th Circuit Court of Appeals in the 1980s, asserts that the current law remains inorganic because it obstructs a citizen's right to trial by jury. 

But the current law has survived multiple challenges at the Superior Court. In one case, the court determined that the law violated the separation of powers doctrine, but the Supreme Court of Guam overturned that decision in 2004. The question of whether the law violated rights to jury trial or due process was left open, however. 

A Superior Court judge determined in 2005 that mandated arbitration didn’t violate equal protection rights, due process or entitlement to a jury trial. But in this case, the plaintiffs bore an extremely high burden and had to negate every conceivable basis for the law, the judge stated.

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