Chief Justice: Judiciary does not have the resources to address medical malpractice cases

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Chief Justice Phillip Carbullido (PNC file photo)

Even if Bill 112-36 is passed, the Judiciary of Guam may not have the capacity to address medical malpractice cases.

Bill 112 replaces the arbitration panel, currently in 10 GCA Chapter 10, with a Magistrate
Judge to perform pre-trial screening of malpractice claims.

But according to Chief Justice F. Philip Carbullido, the Judiciary would not be ready to immediately implement Bill 112 should it become law.

“The Judiciary does not have a specific process in place to handle pre-trial screenings of malpractice claims. We would require time to consider whether specific rules for such pre-trial screenings are necessary and to promulgate such rules,” Carbullido said in a letter to Vice Speaker Tina Muna Barnes.

Moreover, Carbullido said the Judiciary has neither the budget nor the resources to efficiently and effectively conduct pre-trial screening of malpractice claims.

The primary feature of Bill 112 is the requirement for a Magistrate Judge to preside over pre-trial screenings of malpractice claims.

But Carbullido said the Judiciary has only two Magistrate Judges who are already heavily burdened with their existing statutory mandates and responsibilities.

He said the potential influx of malpractice claims caused by the passage of Bill 112 will be difficult to manage given the following:

• The Judiciary is currently addressing and processing a large backlog of civil and criminal cases caused by the COVID-19 public health emergency. This backlog affects not only Superior Court Judges but also Magistrate Judges who conduct countless pre-trial criminal and civil proceedings.
• The recent retirement of Judge Anita Sukola has required that Magistrate Judges be appointed as Judges Pro Tempore to preside over those cases.
• The delay in the Legislature’s confirmation of Alberto Tolentino as Judge of the Superior Court has prevented the re-assignment of such cases from the Magistrate Judges to a newly confirmed Superior Court Judge.
• The moratorium on foreclosures and eviction proceedings was lifted on July 1, 2021, by Executive Order 202 1-13. The Judiciary is expecting a large influx of foreclosure and eviction proceedings. Magistrate Judges will be expected to cover most ofthese foreclosure and eviction proceedings.
• Magistrate Judge duties were recently expanded in P.L. 35-113 (enacted Dec. 11, 2020) to allow them to cover proceedings that formerly required a Superior Court Judge. Magistrate Judges do more now than ever before.
• The Judiciary has only two Magistrate Judges who are already heavily occupied with judicial proceedings.

Complex

In addition, Carbullido said Bill 112 requires consideration of “medical records and medical care facility records, contentions of parties, examination of x-rays, test results and treatises.”  He said these complex matters will require specialized training and education of our Magistrate Judges, for which the Judiciary has neither the funding nor the internal expertise to accomplish.

“The use of a Magistrate Judge for pre-trial screening of medical malpractice claims appears to be a novel concept. We have been unable to find any jurisdictions that use Magistrate Judges atone for this process,” the Chief Justice said.

He added that the complex nature of medical malpractice claims would likely require the hiring of expert witnesses and/or masters, which would involve significant costs. Carbullido said the costs of expert witness and masters are usually assigned to the parties under existing court rules and the Judiciary should not be expected, and does not have the means, to shoulder these costs.

“The Judiciary respectfully requests the Legislature to consider appropriating additional funds for the hiring of one additional Magistrate Judge and necessary support staff and for required specialized training,” Carbullido said.

Without providing additional resources to the Judiciary, Carbullido said Bill 112 would almost certainly exacerbate the Judiciary’s current heavy backlog of cases and critically affect the Judiciary’s operatIons and the administration of justice.

While Bill 112 states that it seeks to prevent the filing in court of actions, Carbullido said the bill would actually require the filing of court actions to initiate a malpractice claim, in effect doubling the judicial review of a malpractice claim—first by a Magistrate Judge for pre-trial screening, then through actual litigation before a Superior Court Judge.

“The impact upon the Judiciary’s operations would be immediate and profound. In conclusion … the Judiciary does not have the financial or personnel resources to meet the mandates of Bill 112 should it become law in its present form. Without adequate funding to
support the required resources, the Magistrate Judges will be unable to effectively and efficiently conduct pre-trial screening and processing of malpractice claims as contemplated by Bill 112. The Judiciary respectfully requests consideration of additional appropriations and a prospective effective date for Bill 112,” Carbullido said.

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