New legislation seeks to update 30-year-old medical malpractice law

David Lubofsky made local headlines when he began a campaign to reform Guam's medical laws.

When a doctor harms someone through negligence or incompetence, it’s only natural to expect that they be held accountable.

But according to the sponsors of a new medical malpractice bill, you can’t even begin to hold doctors on Guam accountable unless you have $30,000 at least.

And that’s on top of other fees and costs.

Senators Therese Terlaje and Telo Taitague hope their new bill changes that.

Senators Terlaje and Taitague introduced Bill 430 on Tuesday.

The bill aims to replace Guam’s nearly 30-year-old Medical Malpractice Mandatory Arbitration Act, which is on the books as Public Law 21-43.

Under the law, before you can bring a doctor to court, it’s mandatory that you first submit your claim to an arbitration process.

The main issue Bill 430 attempts to address is the fact that the petitioner has to pay for the arbitration panel, including their travel fees, as well as pay a fee to an arbitration company.

These initial costs are so high that the average person can’t afford them.

Sen. Telo Taitague said: “It was brought up that this cost is somewhere between the range of $30,000 up to $50,000 that it currently costs for them. And then, at that point, anybody can repeal the decision of this panel by going through a trial de novo. And then, this basically starts it all over again.”

Taitague added: “Then there are additional costs to that. And many attorneys that we’ve spoken to say they usually don’t want to take on these cases because of the exorbitant cost upfront that’s needed, before even heading to something that they think has merit in order to take it to court.”

If passed, Bill 430 would eliminate the arbitration process.

Instead, malpractice complaints would go to a magistrate judge who would then submit the complaint to a confidential pre-screening process.

Ideally, this would protect doctors from frivolous lawsuits but also allow the average person access to a way to hold doctors accountable by eliminating the costs associated with arbitration.

Senator Terlaje says various doctors have told her the current law was initially put in place to create an environment on Guam that would attract more doctors because doctors wouldn’t have to fear as much litigation as they would in the states.

This would also keep medical malpractice insurance rates down, which would lower the cost of doing business on Guam.

Sen. Therese Terlaje said: “We’re not trying to lessen the friendly environment for doctors. We still have a great need for specialists, especially here on Guam. And so that’s where the very delicate balancing act comes. And we will probably face criticism in that this bill is not perfect in that way. And it’s very hard to remain attractive and still allow justice to be served for those who do have legitimate claims.”

Both senators say they were moved to change the current law after learning of the plight of David Lubofsky.

Lubofsky made local headlines when he began a campaign to reform Guam’s medical laws, even protesting outside the Seventh Day Adventist Clinic in Tamuning.

His son Asher passed away in 2018 at the age of five years old.

He alleges it was due to medical malpractice.

David Lubofsky said: “People who lose loved ones … and I’m saying this personally too … people who lose loved ones … I know you can’t use this version … but you really go through heck. It’s unbelievable. Then, when the doctor says ‘Oh sorry for your loss,’ they walk out the door and then you find out that all these terrible things had happened through the whole process and why your child was lost. And then you go to a court or you go to a lawyer, and you can’t get any kind of access. Even the lawyers on Guam don’t take these cases anymore for the most part. They can’t do anything with them because people can’t afford arbitration. So you can’t even find a lawyer. But you go to a lawyer and they say ‘Sorry, nothing we can do because you can’t afford arbitration’ … it’s like your child dies a second time.”