Speaker Therese Terlaje is digging in and standing by her medical malpractice bill, holding a news conference Friday afternoon defending Bill 112-36, two days after it was announced that Vice Speaker Tina Muna Barnes withdrew her support for the bill.
During the news conference, Speaker Terlaje made it clear that although input from future public hearings will be considered, she’s not backing off.
“People harmed by negligence are today being prohibited from pursuing justice. This reality has been made clear to us in the legislature by the courts and by patients. And we, as senators, have an injustice that we must solve. Chief Judge Ramon Manglona said, quote, ‘It would be manifestly unfair to enforce the statutory requirements against a person financially incapable of arbitrating. Doing so would have the absurd result of prohibiting the poor from recovering what they are otherwise entitled to. It would likewise shield the healthcare industry from ever owing liability to the underprivileged.'”
Under current law, those who wish to sue a medical provider for malpractice must first submit their claim to arbitration.
An arbitration panel is then convened that’s composed of an attorney a physician, and a third party that’s neither a doctor nor a lawyer and is not a representative of a healthcare or insurance company.
Bill 112 was introduced because the legislature found that the costs of arbitration are so high that it prohibits many on island from pursuing a malpractice claim.
There are estimates that arbitration can cost up to $50,000 — well outside the reach of most residents on island.
This point was emphasized during a public hearing on the bill that was held on Wednesday.
Senator Joanne Brown said: “Even people who might think they’re upper or middle class, forty, fifty thousand dollars….seventy thousand dollars, is a lot of money. It’s a lot of money. And most people do not have the ability to have that available in their bank account, or even if they were to go to a bank to borrow it.”
However, much of the medical community has pushed back hard on the bill.
Much of it revolves around concerns that Bill 112 makes doctors more vulnerable to frivolous claims and will increase the price of malpractice insurance.
The fear is that this will drive providers, specialists in particular, off island.
Local healthcare providers such as Sagua Managu and the Guam Seventh Day Adventist Clinic issued letters in opposition to the bill.
The SDA Clinic sent their letter directly to their patients, informing them that they may have to restrict the scope of care they can provide if Bill 112 becomes law.
The Sagua Managu letter cites a 2021 article by the American Medical Association that says 65% of malpractice claims that closed between 2016 and 2018 were dropped, dismissed, or withdrawn and the vast majority of cases that did go to trial were won by the defendant.
The argument is that Bill 112 doesn’t pass the cost-benefit analysis since it would expose providers to greater risk to satisfy rare occurrences of malpractice.
In defense of the bill, Terlaje said that there is no change to the standard of care or expectations placed on providers and that there’s no reason a doctor can’t do something after the passage of Bill 112 that they wouldn’t have done prior.
“This bill does not affect who’s liable. It just gives people who were affected an opportunity to pursue. That’s it. We’re not affecting whether malpractice occurred. That’s way beyond the scope of this bill. We’re in fact saying that the current standard of care is going to continue according to the law,” she said.