Court rules in favor of SDA in medical malpractice lawsuit

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SDA's request for a stay pending arbitration was granted.

An attempt to challenge the constitutionality and “organicity” of the Medical Mandatory Arbitration Act has been shot down by the Superior Court of Guam which upheld Guam law regarding the arbitration of claims of medical malpractice.

The complaint involves the Seventh Day Adventist clinic and the wrongful death case of five-year-old Asher Lubofsky who passed away on October 31, 2018.

His parents David Lubofsky and Christine Simbahan filed a medical malpractice claim in May 2019, stating that their son’s death was a result of SDA’s negligence in providing medical treatment.

Their claim falls under the MMMAA arbitration being a costly endeavor, the parents argued that the law infringes on their right of free access to the courts.

But in a decision by Superior Court Judge Arthur Barcinas, it was determined that the arbitration law is not unconstitutional nor does it infringe on the plaintiff’s rights.

Siding with SDA, Barcinas found that no violations of fundamental rights occurred as it pertains to the right of free access to courts stating, “the Court finds the MMMAA constitutional and organic both facially and as applied. Accordingly, the Plaintiffs’ Motion for Declaratory Judgment and Permanent Injunction is DENIED.”

The judge further granted SDA’s request for a stay pending arbitration in accordance with the Act.

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Jolene Toves
Jolene joined the PNC team in 2017, as a producer, co-anchor and investigative reporter covering law enforcement, courts and crimes. Notable coverage includes the Ehlert case, the Mark Torre Jr. trial, the Allan Agababa trial, exclusive pieces on the Life of a Drug Dealer/Addict, and Life behind bars...the story of Honofre Chargualaf and Kevin Cruz. In 2019, she was promoted to Assistant News Director and Lead Anchor. From 2015 to 2017 she served as Public Relations and Promotions Manager, for the Hotel Nikko Guam handling local radio and advertorial promotions, as well as produced and directed tv commercials for the hotel. Prior to this she worked with KUAM for three years as a reporter and segment host. She began her journalism career in 2012, working with Glimpses of Guam contributing to the Guam Business Magazine, R&R magazine, MDM magazine and the Marianas Business Journal.

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