TESTIMONY GIVEN SEPT. 19, 2019 at THE GUAM LEGISLATURE.
IN HONOR OF ASHER DEAN
TESTIMONY:
Guam Medical Malpractice Mandatory Arbitration Act
Senator Therese Terlaje,
Chairperson, Committee on Health, Tourism, Historic Preservation, Land and Justice
September 19, 2019
From: David Lubofsky (Speaking for Asher Dean Lubofsky)
I am David Lubofsky, the father of Asher Dean Lubofsky, who at age 5 passed away at the Guam Memorial Hospital on October 31st, 2018, almost one year ago.
Let me first start off by saying that I would prefer to be anywhere else on the planet besides here at this moment, as what has brought me here is the worst nightmare that a parent can face. The death of a child is an unrelenting nonstop painful nightmare. To make it more painful and the reason that we are all here is about how our children and family members die due to medical negligence or malpractice needlessly and those negligent doctors who then walk away with no accountability or even a record of what they did to then see and endanger others on Guam. When Asher entered the Guam Seventh Day Adventist Clinic on October 29th for his annual wellness exam, while also sick with symptoms, and saw Shishin Miyagi or when he ended up at The Guam Memorial Hospital the next day, I had no idea that he would die and I had never heard of The Malpractice Arbitration Act. I will not get into my anger over how Asher was treated, or better said, NOT TREATED, you can read that online.
This meeting is about what happened to Asher and many other children and people on Guam after their death, injury etc due to negligent medical care. This meeting is about the discriminatory Medical Malpractice Mandatory Arbitration Act that lets doctors walk away with little or no accountability after our children or family members are injured or killed by their blatant malpractice negligence. This meeting is about real people, it’s about our kids, it’s about the death of Asher, Baby Faith, Jqry-Wakyn, Aiden, Charlie and the list goes on and on of our dead kids due to negligence and a legal cover up with the Arbitration Act then the doctors who treated or mistreated these kids go on and treat your kids as if nothing happened. With Arbitration, they could kill many kids and no one would even know. IS THERE EVEN RECORDS OF THESE INCIDENTS?
With ASHER’s death, when it became time to hold Shishin Miyagi, Ethan Snider, Seventh Day Adventist Clinic and Guam Memorial Hospital responsible, we, like many others on Guam ran into the ARBITRATION Act. We heard “I AM SORRY, IF YOU WANT TO HOLD THESE PEOPLE ACCOUNTABLE IN THE DEATH OF ASHER; YOU FIRST HAVE TO ENTER ARBITRATION AND PAY THE HUGE EXPENSES OF IT.” We heard this over and over. So, I kept asking, the obvious question, “Can these doctors kill us, kill our kids and then walk away with no accountability as few can afford the process?” The killers of our family are protected by a legislative supported law, THE ARBITRATION ACT. How many families have buried loves ones due to negligence and were told the same thing, sorry, nothing can be done; THERE IS NO ACCOUNTABILITY FOR DOCTORS?
The Act makes it so people of average or low income cannot afford to seek justice. The Act prevents due process or going to court unless you go thru the expensive, drawn out arbitration process first. IT DISCRIMINATES AGAINST ALL OF US, ESPECIALLY THE POOR. When I walked into this second nightmare with the Arbitration Act, it angered me much and still does beyond words, as Guam doctors are a protected class, an elitist group that looks down at the rest of us which is evident in how many of them conduct themselves and how we are treated by this Arbitration Act, AND HOW THEY HAVE discriminated against us, especially the poor on Guam. This does not necessarily apply to all doctors, but has become part of the overall Physician Culture on Guam, in my opinion. The Guam Doctors know there is no accountability to the poor (or all of us) as they and we can never afford the Arbitration process. Does this play into how doctors treat us daily?
I had a parent this week message me over and over about how they cannot even get a referral for off island for a very sick 6 month old baby as the doctor seems to be full of excuses for the mother why he cannot do it. The mother is on Public Assistance. The Doctor told her to go see someone else, even though the child has been hospitalized with this same doctor at GMH multiple times and she was at GMH requesting a referral during the last hospitalization with her 6 month old baby. Is he waiting for the baby to die? The parent is frantic, the doctor is indifferent. My opinion, that is what lack of accountability does, makes doctors apathetic and they ignore the plight of our kids This is what happened to Asher, no doctors saw him for his last 12 hours alive, left him without checking him. . APATHY breeded by the ARBITRATION ACT.
The lack of accountability should anger everyone. Name any other profession on Guam that has no accountability as afforded to doctors due to the Arbitration Act? The difference is that our kids our dying. The law discriminates against the poor and that was my biggest issue initially, but as time passed and after talking to many parents and other people on Guam it’s evident beyond the discrimination, that the law creates apathy among doctors as I referred to already. A better name for this Act is the APATHY ACT. People who are not accountable for their actions and are protected, no matter what they do wrong become apathetic. We, AS PARENTS, will never allow our kids to be NOT accountable and we want our children to be responsible for their actions, but the people who take care of our kids medically, we do NOT hold them to the same basic standards of accountability that we hold our kids to. IT DOES NOT MAKE SENSE.
Actually, looking back to when the Arbitration Act was enacted and supportive testimony by Mr. James Gillan, who was the administrator of the Guam Memorial Health plan at the time, lays out the true intent of the Arbitration Act. He said at that time, prior to the Act being passed into law, that doctors were practicing defensive medicine because they were worried about being sued for malpractice. In my opinion, Defensive medicine means that they were doing everything they could for their patients, lab tests etc etc. Defensive medicine means being responsible doctors.
Even though there were few if any malpractice cases at that time, 30 years ago, when Gillan gave his testimony, he was making the point that the doctors do too many lab tests etc back then because the feared being sued. In my opinion, he was saying they were being TOO ACCOUNTABLE as they worried about malpractice or being sued and that this APATHY ARBITRATION LAW would alleviate that so they did not have to worry about being sued and could do less diagnostics with our kids.
LET ME TRANSLATE FOR YOU, JIM GILAN WAS SAYING THAT WHEN DOCTORS PRACTICE DEFENSIVE MEDICINE AND DO EVERY TEST ETC BECAUSE THEY WERE WORRIED TO BE SUED, HE MEANT THE ARBITRATION ACT WILL MAKE IT SO INSURANCE COMPANIES WILL SAVE AND PAY LESS AS DOCTORS CAN DO LESS TESTS ETC. HE WAS SAYING THE LAW WOULD MAKE IT SO THE DOCTORS DO NOT HAVE TO PRACTICE DEFENSIVE MEDICINE.DO NOT HAVE TO BE ACCOUNTABLE, INSURANCE COMPANIES WOULD SAVE MONEY. DOCTORS WOULD HAVE LOWER OR NO MALPRACTICE INSURANCE AND THE STAGE WAS SET FOR APATHETIC MEDICAL CARE ON GUAM UNDER ARBITRRATION.ITS HARD FOR ME TO FATHOM,THE RATIONALE OF PRETTY MUCH TELLING DOCTORS THRU THIS LAW THAT THEY DO NOT HAVE TO PRACTICE DEFENSIVE MEDICINE, WHICH PROTECTED US UP TO THAT TIME, IF THE ARBITRATION ACT WAS PASSED, WHICH IT WAS.
How many have died OVER THE YEARS as this APATHETIC MEDDICAL CARE, A PRODUCT OF ARBITRATION PROTECTION, became part of our Guam Physicians culture? Baby Faith, who passed at GRMC, never got simple lab tests as that doctor seemed to not care and was not practicing defensive medicine. Asher Dean Lubofsky went into the SDA clinic with symptoms, etc but never got a simple CBC blood test, or even the wellness exam that we were there for and paid for, which may have saved his life if that doctor was practicing defensive medicine. Hey Jim Gillan, you did save money on these two dead kids and others. How many other people have died in the same situation on Guam,I would venture to say hundreds over the years? I would venture to guess that this Arbitration Act has "dumbed down" medical care on Guam so much that no matter how much money that you spend of our taxes on GMH will not fix the problems, short of making doctors accountable. BRING BACK DEFENSIVE MEDICAL CARE.
I think it’s important to note that The Arbitration Act is being questioned if it’s organic or constitutional. There is a current LEGAL challenge to it in court. The law in the past, as previously written, was deemed to be unconstitutional, and according to a Guam POST story, Attorney Pipes implied that this current law we are discussing TODAY is also not constitutional. It deprives us the right of due process to bring those who kill or injure our family members to court. Also, an interesting law is being discussed in Washington and it is said that it will pass. THE FORCED ARBITRATION INJUSTICE REPEAL ACT, HR 1423 OR THE FAIR ACT, will ban all forced arbitration in contracts, INCLUDING HEALTH CARE, and I would expect also legislatively enacted FORCED ARBITRATION like our Mandatory Arbitration Act. The reason for this federal law is clear, people were getting their rights violated, were robbed of due process and sold inferior goods, and services, including health care issues, and had to deal with apathy and had no rights when these contracts were in place and enforced. The FAIR law has implications for Guam and should be the writing on the wall, if for no other reason that the Arbitration law needs to be repealed.
Let’s just step back for a minute and ask who protects us as citizens on Guam from medical negligence, malpractice etc. With this Arbitration Act, what options exist for the average person with a valid complaint against a doctor?What do we do, where do we go? Every system of medical care should have a check and balance system with protections for the citizens. What protections do we currently have on Guam? What recourse do we have? Let me outline them for you briefly.
When we have a problem with a medical person, we have the Guam Board of Allied Health Examiners and we have the Guam Board of Medical Examiners. We can file complaints with them, but this has been proven to be useless. The Guam Board of Medical Examiners gives off island doctors licenses to practice on Guam to those applicants who only meet minimal qualifications and they have licensed doctors who have malpractice histories. They bring these new doctors here, put us at risk, while offering them low malpractice insurance due to the Arbitration Act, with protection from law suits. Some of these doctors may not be able to work anywhere else, but the Board led by Dr. Nathaniel Berg does not seem to be worried about that. Then when we complain about a doctor, or the death of a child, this Board that has major conflicts of interest, including financial, will investigate and make decisions, not mitigating their own serious conflicts of interest, not interviewing the complaining parties, as in our case, the parents of a dead child, then release the results of their so called investigation to the media before talking to the family or informing the family. In my opinion, there should be an oversight hearing of the Medical Examiners Board, and the law that created it. They were recently described as corrupt on a local news media. How many doctors on Guam have a history or claims against them for MALPRACTICE and they were then licensed by the Board? How many doctors on Guam have complaints against them for malpractice or investigations of complaints for the public to be aware of? ASK THE BOARD THIS? It should be public record. A doctor can kill our kids and go on to the next child and this Board does not have a public record, which is our right. OVERSIGHT HEARING TIME.
The Guam Board of Allied Health Examiners is another place that takes complaints against Physician Assistants, as we filed, but they do not take complaints seriously and do not do what they are mandated to do. A dead 5 year old child, Allied Board gets a complaint regarding a Physician Assistant who denied my son to see a doctor 20 hours before Asher died, among other things. Nine months later, The Allied Board has not done anything with the complaint. It just sits there. They never even communicated with the family. When they are faced with complaints, they do NOT care obviously by their actions. Are they waiting for another child to die before they act on a complaint? Total apathy by this Board, still boggles my mind how they can see themselves as professionals who have the community’s best interest in mind.
IT’S CLEAR, we as consumers of health care, families, parents etc. have no protection, not from the politically appointed governing Boards who are apparently self serving, not from the courts due to the Arbitration Act and up to now not from our elected leaders who have allowed us to suffer and die due to these problems with the Boards and Arbitration.
It is too late for my son Asher Dean; nothing you can do will benefit him or us. Our suffering will not be alleviated by a repeal of this Apathy Arbitration Act, but we can take some solace to know that other families will not suffer as we and others have by making doctors responsible for destroying lives. Asher was taught the difference between right and wrong and to be responsible, sadly and obviously his doctor and others were not.
IMPROVE MEDICAL CARE ON GUAM, SAVE LIVES, REPEAL THE MALPRACTICE ARBITRATION LAW.
DAVID LUBOFSKY, FATHER OF ASHER LUBOFSKY who was robbed of his life by the people that this Arbitration ACT protects.
Asher Dean Lubofsky, passed away 2 days after seeing Mr. Shishin Miyagi at the SDA Clinic on Guam.
TESTIMONY GIVEN october 3, 2019 AT THE GUAM LEGISLATURE.
IN HONOR OF ASHER DEAN
TESTIMONY: Guam Medical Malpractice Mandatory Arbitration Act,
Informational Hearing
Senator Therese Terlaje, Chairperson,
Committee on Health, Tourism, Historic Preservation, Land and Justice
October 3, 2019, 2nd Meeting
From: David Lubofsky (Speaking for Asher Dean Lubofsky)
I am David Lubofsky, the father of Asher Dean Lubofsky, who at age 5 passed away at the Guam Memorial Hospital on October 31st, 2018, almost one year ago. As I stated last meeting, I would prefer to be anywhere else besides here dealing with the blatant medical negligence and apathy that took Asher’s life with NO accountability or even a public record of what the doctor did, then knowing the same doctor will be able to go off to see and endanger others on Guam, thanks to the Arbitration Act. Isn’t it true that doctors under this ARBITRATION (APATHY) act could kill or injure many and we will never know it with all the protection it offers to doctors, with the built in secrecy and privacy including being covered for by their colleagues? Then we hear the tragedies rationalized as Standard of Care issues to get doctors to Guam?
We are not here for the doctors. This meeting is about real people, THE VICTIMS it’s about our kids, our family and out of respect for some of these VICTIMS it’s about the death of Asher Dean, Baby Faith, Jqry-Wakyn, Aiden, Charlie, it’s about Anelyn Lagrimas’ father who we heard about his mistreatment at the last meeting at GRMC and the list goes on and on of our injured and dead relatives and friends due to negligence and a legal cover up with the Arbitration “APATHY” Act.
LOOK AROUND DOCTORS; YOUR VICTIMS HAVE REAL FACES.
To be clear, what we are discussing here today does not have to do with all GUAM doctors. Guam has some great doctors. I have seen many, including being treated by the same dentist for 25 years. I have 6 kids who have been at one time or the other in the Guam medical system over the past 45 years, yes 45 years. Standard of care or standard of treatment for all of them was fine, that is until Asher entered the Seventh Day Adventist Clinic and saw Mr. Shishin Miyagi.
Isn’t this what we are talking about really, not the good doctor, not even the average doctor, but just that DOCTOR who makes NEGLIGENT mistakes and should be held accountable to protect all of us? All Guam doctors meet the so called standard of care until they INJURE OR KILL SOMEONE NEGLIGENTLY.. It’s not about the islands standard of care; it’s about negligence by a few that the medical community as a whole want to protect, in order to maintain their own personal interests.
During the last meeting we heard from Attorney Mitch Thompson and Attorney Bell, who practice on both sides of the aisle with claimants and defendants, both agreeing that the cost of Arbitration is extremely high, TENS OF THOUSANDS OF DOLLARS, making it near impossible to bring these cases to Arbitration and to hold these negligent doctors responsible.
I was astonished last meeting to hear Dr. Hoa Nguyen, Acting President of the Guam Medical Association state that we are “confused” about the Arbitration law. “CONFUSED,” my gosh! He said the act isn’t to protect the doctors; it’s about the overall quality of care on Guam and he implied it helps to bring doctors to the island. I am wondering if Dr. Nguyen has read the act. If the Act is supposed to improve medical care or bring doctors to Guam and the concern is the standard of care, why is the Arbitration process as secretive as we heard last meeting? The doctors are already on Guam, it has nothing to do with bringing doctors here. Isn’t that SECRECY to protect the doctor, not our families and community, to hide who did what?
Name any other investigative hearing or accusation of negligence on Guam that affords such secrecy? WHY DO WE LOSE OUR FREEDOM OF SPEECH FORCIBLY WHEN WE AGREE TO THE FORCED ARBITRATION? THE PROCEEDINGS PREVENT US FROM SPEAKING ABOUT THE ISSUES. Why are we threatened, if we do not like the outcome of Arbitration that we are forced into with no choice that we have to pay the doctors legal fees if we go to court?
Shouldn’t we know which doctors to avoid; wouldn’t that be prudent for improved medical care and choice? Isn’t this our right? The whole standard of care that has been mention by Dr. Nugyen and we have heard over and over here is something that is made up with no real proof. It’s an excuse. Does Dr. Nguyen tell his patients that, sorry that you are not happy at our clinic but it’s about the Guam Standard of Care or does he take responsibility for patients issues or the many complaints.
As I said earlier, I have 5 kids that have had good standard of care on Guam and overall good doctors, ASHER didn’t and died. Maybe that’s a national average, 17% get deadly lousy 3 care. You can’t sit here and tell us that standard of care is not like California or Texas, as Dr. Nugyen did last week. It’s laughable when you consider that Medical Errors, Negligence in the USA, per recent studies is the third leading cause of death. According to a recent study by Johns Hopkins, more than 250,000 people in the United States die every year because of medical mistakes, making it the third leading cause of death after heart disease and cancer.Feb 22, 2018
Are you saying that our standard of care on Guam is worse than the states as Dr. Nguyen implied and that STATISTICALLY more people die on Guam due to it or WOULD DIE IF WE DID NOT HAVE THE ARBITRATION LAW? Extrapolating the statistical data for Guam, it would mean that we have around 107 or more deaths per year due to Medical Negligence. I bet no one in this room had heard that projection and never will either as the ARBITRATION ACT prevents these deaths from being reported accurately or covers up the medical negligence we face and die from. If we follow national averages, on NEGLIGENT DEATHS BY DOCTORS, why is it that we have one of the strictest Malpractice Arbitration Policies in the country per a RECENT Guam Post Article? Shouldn’t we try to get rid of some of these BAD doctors, rather than exposing them to other children?
The argument that Arbitration or the APATHY act would bring more doctors to Guam has not been proven here today or in the past. it’s a MERITLESS CLAIM. Attorney Richard Pipes stated that it’s a naked “FINDING” that there is NO crisis in getting doctors and that NO such crises exist. So, who do we listen to, AS 100 PEOPLE PER YEAR DIE FROM NEGLIGENCE, doctors with the strictest MALPRACTICE policy of self protection in the country AND who have Arbitration hearings privately THAT CAN NOT BE DISCUSSED PUBLICLY or the Attorneys like Keogh today or PIPES who successfully argued the last Malpractice law in front of the 9 th circuit, or what about the national statistics that state Medical Malpractice is at Epidemic concerns and we may be losing over a 100 people or more per year on Guam to death due to Negligence? Do we listen to the families who have lost loved ones due to careless, lazy, apathetic mistakes? Do we look at the danger that is created by doctors who kill or injure and then practice the next day ON THE NEXT UNSUSPECTING PATIENT due to the protection of Arbitration?
Under the umbrella of Arbitration, how you can say that you are protecting the people of Guam and want to bring good doctors to Guam and improve Standard of Care? If this is true, why do you bring doctors to Guam who only meet minimal requirements and some have histories of Malpractice already? Some of these doctors may not be able to work in other places. How can you sit there and justify that? Then you bring these people here and give them protection and privacy and put us at risk and act as if you are doing us a favor. This does not improve quality of care on Guam. ISNT IT TRUE, AMONG SOME OF YOUR COMMUNITY OF DOCTORS, THAT SOME SAY GUAM IS KNOWN AS A PLACE TO GO TO WORK AS A DOCTOR IF YOU CAN’T WORK IN OTHER PLACES?
The Guam Medical Board of Examiners licensed a doctor, as an example, in the states with more than one malpractice claim against him, and then brought him out here where he negligently did the same thing to a Guam patient with serious consequences. We have no idea how many times this has happened as it’s hidden from us. IS THIS HOW WE ARE PROTECTED BY MR. NATHANIEL BERG AND THE LICENSING BOARD? IS THIS HOW THAT BOARD AND THE MEDICAL ASSOCIATION AND SOCIETY PROPOSE TO IMPROVE MEDICAL STANDARDS OF CARE, BY BRINGING THESE PEOPLE HERE WHO HURT OR KILL US??
According to a KUAM interview with Dr. Gill, a Guam Medical Board Member, she said, accessing information about your doctor on Guam is NOT as easy as it is in the states where most Medical Licensing Boards have websites with information available about doctors, so we can make informed choices. Dr. Gill said the Board is hoping to implement the same thing on GUAM.
THAT WAS 8 YEARS AGO, BUT STILL NOTHING.
SENATOR TINA MUNA BARNES years ago sponsored and passed the PATIENT PROTECTION THROUGH INFORMATION ACT. This is all about a Physicians profile being public information so we can know who these doctors are, complaints against them etc. . . If you go to the NONFUNCTIONAL website of the Guam Board of Medical Examiners, there is a dead link for this law. This is another example of how our Medical Examiners Board don’t protect us. THEY HAVE NOT FOLLOWED THIS LAW, HAVE NOT SET UP THE WEBSITE AND ARE TRYING SEEMINGLY TO HIDE THE BAD DOCTORS FROM US, JUST LIKE ARBITRATION. IT’S ALL ABOUT PROTECTING THEMSELVES AT THE PERIL OF THE COMMUNITY, EVEN VIOLATING A LAW.
Do we not deserve the same standard of information as in the states? Isn’t this information a factor of standard of care, INFORMED MEDICAL DECISIONS? WHY CAN LAWS BE BROKEN TO PROTECT DOCTORS? Dr. Gill also spoke about PEER REVIEWS when the Board receives complaints about doctors. A Peer Review is a form of self-regulation by qualified members of a profession within the relevant field. It’s not a radiologist reviewing a Pediatrician’s work, even though our Licensing Board may think that. PEER REVIEWS RARELY IF EVER HAPPEN and my Asher was never afforded what Dr. Gill said SHOULD HAPPEN, A PEER REVIEW. Again, protection of doctors and apathy is the undercurrent of this, which pretty much again defines The Arbitration Act (Apathy Act), along with arrogance.
It’s obvious to us, not only as parents, but the community, that the local Medical Association AND Society, and The Guam Licensing Board of Medical examiners is about the protection of themselves at the peril of the community. The Arbitration Act or Apathy Act is just another tool to silence us.
I am not going to focus on how the ACT DISCRIMINATES AGAINST ALL OF US, ESPECIALLY THE POOR. Guam doctors are a protected class that looks down at the rest of us which is evident in how many of them conduct themselves, their testimony; not following the patient protection law and their conflicts of interest to cover for each other proves that, NOT TO MENTION THE ARBITRATION ACT. This does not necessarily apply to all doctors, but has become part of the overall Physician Culture on Guam, in my opinion.
Mr. James Gillan gave testimony saying that doctors used to practice defensive medicine because they were worried about being sued for malpractice and that this (APATHY ) ARBITRATION ACT would alleviate that so they did not have to worry about being sued. DEFENSIVE MEDICINE WOULD BE ONE LESS WORRY WHEN THE ACT PASSED. . Defensive medicine means that they were doing everything they could for their patients, lab tests etc etc. Defensive medicine means being responsible doctors, STANDARD OF CARE CORRELATES WITH DEFENSIVE MEDICINE.
How many have died OVER THE YEARS due to APATHETIC MEDICAL CARE ON GUAM, AS A PRODUCT OF ARBITRATION PROTECTION, WHEN APATHY became part of our Guam Physicians culture? IF THE STATS ARE CORRECT, AS MENTIONED EARLIER, AT LEAST 100 HAVE DIED DUE TO MEDICAL NEGLIGENCE SINCE ASHER LEFT US. HOW MANY IS THAT OVER THE 30 YEARS THAT THIS ACT HAS BEEN LAW.
LET ME AGAIN REPEAT A FEW NAMES OUT OF PERHAPS HUNDREDS OR EVEN THOUSANDS WHEN WE LOOK AT STATS. Asher Dean, Baby Faith, Jqry-Wakyn, Aiden, Charlie and MANY MORE….many. IT’S NOT STANDARD OF CARE OR EVEN ARBITRATION THAT KILLED THEM; IT’S A FEW NEGLIGENT DOCTORS THAT DID IT, THAT SHOULD BE ACCOUNTABLE.
With this Arbitration Act, there are no options for the average person with a valid complaint against a doctor? What do we do, where do we go? Every system of medical care should have a check and balance system with protections for the citizens, that’s also a variable of standard of care. I provided INFORMATION last week on how the Guam Board of Medical Examiners has failed us and is rife with conflicts of interest. They have been referred to as corrupt in a local recent media report. They do not even allow for or follow the law dealing with the PATIENT PROTECTION THROUGH INFORMATION ACT. ASK THEM WHY??
Also, we have the Guam Board of Allied Health Examiners who do not act on complaints, even the death of a child. My son’s one year anniversary of his death is this month and they did nothing so far, had the complaint for 10 months and counting, nothing done.
I AM ASKING THE DOCTORS HERE RIGHT NOW, or those on Guam, how many doctors on Guam have a history or claims against them for MALPRACTICE and they were then licensed by The Guam Medical Examiners Licensing Board? How many doctors residing on Guam have complaints against them for malpractice or investigations of complaints for the public to be aware of? WHATS THE SECRET?
Dr. Gill said this is known in other places, why do WE NOT KNOW IT HERE? It’s our right, which are negated by the Arbitration Act. IT’S THE LAW UNDER THE PATIENT PROTECTION THROUGH INFORMATION ACT.
THE PHYSICIANS WHO SUPPORT THIS ACT should be ashamed of themselves with willful disregard and arrogance to lecture to us, telling us we are confused, talking to us about standard of care and trying to justify a law that kills us and protects them. Your self-serving attitude is now public record. The Arbitration law is just one example, as I have stated, that show true intent of the medical community to protect their own, including not following other laws. It’s time to fix things rather than benefiting from this Draconian Arbitration APATHY Act. As Attorney Mitch Thompson accurately said during the last meeting, doctors do not want to judge their colleagues. There is no protection for us. The Guam Medical Examiners Board and THE ALLIED BOARD have proven that over and over again, as has those who gave testimony here today trying to justify the Act.
ANY CHANGE IN THE LAW SHOULD NOT INCLUDE GUAM DOCTORS TO OVERSEE COMPLAINTS OF OTHER DOCTORS, PER WHAT ATTORNEY MITCH THOMPSON SAID, WHAT WE HAVE EXPERIENCED PERSONALLY AND WHAT WE HAVE SEEN AND HEARD HERE TODAY. THEY ARE NOT IMPARTIAL AND WILL NOT PROTECT OUR INTERESTS OVER THEIR OWN.
I think the crux of medical problems on Guam or issues with care come from the Arbitration Act and attitude of those Physicians that try to justify it.
REPEATING MYSELF…. It is too late for my son Asher Dean; nothing you can do will benefit him or us. Our suffering will not be alleviated by a repeal of this Apathy Arbitration Act, but we can take some solace to know that other families will not suffer as we and others have by making doctors responsible for destroying lives
Asher was taught the difference between right and wrong and to be responsible, sadly and obviously his doctors; INCLUDING MANY IN ATTENDANCE TODAY WERE NOT.
GET RID OF THE BAD DOCTORS; DO NOT BRING MORE TO GUAM. IMPROVE MEDICAL CARE ON GUAM,
SAVE LIVES, REPEAL THE MALPRACTTICE ARBITRATION LAW.
DAVID LUBOFSKY, FATHER OF ASHER LUBOFSKY who was robbed of his life by the people that this Arbitration ACT protects.
WHO PROTECTS US ON GUAM
The Guam Board of Medical Examiners are supposed to oversee Doctors and handle complaints fairly.
The testimony from the first Legislature meeting, Sept. 19th, 2019, outlines the lack of protection that we have on Guam with Medical Negligence and it appears to be all about circling the wagons to protect each other..
Attorney Mitch Thompson stated that doctors in there close knit community on Guam do not want to judge their colleagues.
The Guam Medical Examiners Board is no different, under the leadership of Nathaniel Berg, seems unable to separate their own conflicts of interest from making appropriate decisions on Medical Neglect.
The below article outlines the insanity of medical care, apathy and arrogance on Guam.
The Board stated......
" Lubofsky's complaint involved Miyagi's failure to diagnose his son, but Berg said he could not find any such evidence within the medical records and there were no signs of significant illness in the child. "
I guess they missed the part of the complaint that I told them the records were not accurate and were done without correct information. I guess they missed the part of the complaint that I told them the doctor did not exam Asher, did not pick up his stethoscope and gave my dying son 15 minutes if that long. I guess they missed the part where I told them Asher had been sick for 2 days,with off and on fever, throwing up and raspy voice that he had that day of the exam. I guess they missed the part where Asher 24 hours later had full respiratory distress, which would have been noticeable the day before, when he saw Miyagi. I guess parents reporting medical problems are negated when the doctor needs to watch his watch. Berg and the Board did not take any of that into account as they were protecting their own, not to mention that Mr. Berg has serious conflicts of interest with this clinic. In any case, they all know we cant sue due to arbitration and that's the real issue. Arbitration leads to apathetic medical care that is covered up by those supposed to protect us.
We are screwed on Guam, at least up to this point.
CROOKED DOCTORS BY KANDIT NEWS, SPELLS IT ALL OUT.
During the October 3rd meeting at the Guam Legislature, doctors gave testimony regarding the Arbitration Act. As one can figure, they all favored the Act. This is not surprising as they all benefit from it. Most doctors left before the victims of the act spoke. Again, not surprising, as the Act silences us and in the public forum they were not interested in hearing from us either, sadly.
What was interesting, and arrogant is that Dr. Nathaniel Berg, (yes, Dr. Berg, the same person who sided with the doctors at SDA) tried to equate the grief we feel about Asher as to why we all were at the legislature. It was hard for me to sit there and hear him talk about the loss of a child as if that is what the fight to repeal Arbitration is all about. He implied that public policy should not be changed due to such a death or in reality the passing of Asher.
Well, I agree with him, but he does not get it. Its not about the death of Asher only, its the death of more than a hundred people a year due to negligence per projected stats, its about the many who are negligently injured and its about how Berg and his fellow doctors hide all of that from us with Arbitration. You have to ask yourself if, as sincere that he seems, if he is just so out of touch he does not get it. Its about the protection of the people of Guam, not about Asher. Asher maybe gave a face to it as I will not walk away from negligent doctors, not matter what.
Shame on you Mr. Nathaniel Berg to dismiss the people of Guam's concerns and to dismiss Asher again, as you did with your biased investigation.
Oct. 29th,2018 ASHER entered Guam Seventh Day Adventist Clinic, for the last two days of his life.
THE VICTIMS of ALLEGED MEDICAL MALPRACTICE (add your family member photo, send to us.)
MEDIA COVERAGE
GUAM POST
Grieving parents face hurdles as they seek health care accountability
- John O'Connor | The Guam Daily Post
- Jul 5, 2019
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FIVE WEEKS OLD: Baby Aiden, the 5-week-old son of Michelle Green and Leonard Quaile, shortly before his death in 2011. The couple is suing TakeCare Insurance for malpractice in relation to the death. Photo courtesy of Michelle Green
ASHER: Asher Lubofsky is shown in a social media post by his father, David Lubofsky. Asher Lubofsky died on Oct. 31, 2018. Photo courtesy of David Lubofsky
Editor's note: This is the first of a two-part series on the challenges of holding medical practitioners accountable under Guam's medical malpractice law.
Aiden Quaile was born on Aug. 26, 2011, to parents Michelle Green and Leonard Quaile. The boy was 8 pounds and healthy, save for a mild case of jaundice, which was treated at the hospital. He was Green's firstborn.
About a month later, Aiden suddenly fell ill. He was taken to the FHP Urgent Care Center. His mother waited more than an hour before seeing a physician's assistant in the examining room. She was told Aiden had simple colic, excessive crying that normally doesn't indicate health issues, according to court documents.
But Green wasn't convinced. She said she begged the physician's assistant to call the hospital or an ambulance. The mother contends the clinic staffer did not. It had been nearly two hours.
Green drove to Guam Memorial Hospital herself. Hospital staff confirmed Aiden was not suffering from colic - he was in respiratory distress. Green held an oxygen mask over her son but a deep blue encroached on the baby's lips and nose.
She screamed. Staff rushed in. Aiden was taken away.
"I insisted on seeing him again and they told me I had to say goodbye to him," Green told the Post. "So I just held him."
Aiden died on Oct. 1, 2011, a few hours after the baby was brought to the emergency room. His parents would file a lawsuit in federal court years later, raising negligence claims against health care providers and bringing into the spotlight Guam's three-decade-old Medical Malpractice Mandatory Arbitration Act.
TakeCare Insurance has previously stated the negligence wasn’t on TakeCare's clinic, but rather on the baby's mother for her alleged failures to follow the instructions of health care providers, describe the child's health history, and timely follow the course of treatment and care indicated by health care providers.
There has to be accountability
The suit has since fizzled into settlement but two separate claims have emerged in the local court, both involving grieving parents, allegations of medical malpractice, claims for millions of dollars in remedy, and challenges to the constitutional validity of Guam's mandatory arbitration act.
"I'm really glad that the law is receiving attention now," Green said, speaking to the Post in early June. "Nobody really wants to sue doctors but these cases do have a deterrent effect. And when you go to this level ... there's actually no accountability. This is dangerous. This is unacceptable. There has to be some accountability."
Guam law forces arbitration proceedings, an out-of-court process to settle disputes, in medical malpractice cases. The costs, which could reach tens of thousands, must be born by the parties. A party can take the case to court afterward, but it is that initial financial burden that opponents say imposes an unreasonable hurdle on individuals seeking relief.
Most states have some form of prelawsuit mediation, screening or review in medical care disputes - a safeguard against overtaxing courts with frivolous cases. Several states allow parties to enter into arbitration but very few require arbitration, and seemingly none as strictly as Guam.
Maryland, as an example, generally requires arbitration but this can be waived by either party.
Green characterized Guam law as "uniquely draconian" compared to other jurisdictions.
"No other jurisdiction puts the financial burden on plaintiffs to pay for three (American Arbitration Association) arbitrators; Maryland compels arbitration, but it is paid for out of a state fund. Other states have presuit mediation or other alternative dispute resolution requirements, but none preclude a fair determination of a medical malpractice claim like Guam’s," she wrote.
Frustration
When Green, a tax attorney, first attempted to challenge the law on Guam, she encountered few fellow lawyers who would take up her case.
"I was literally laughed at. Nobody thought there was anything wrong with the Medical Malpractice Act. That it was just cut-and-dry," Green said.
She would find representation in attorney William Fitzgerald, but the pair later parted ways, leaving Green to litigate the federal lawsuit on her own.
"I was at this crossroads. The lawyer in me wanted to go to trial, get the ruling, go to the 9th Circuit and appeal the law if that's what it took," Green said.
But she was concerned that a loss in the District Court could justify turning away people seeking to challenge the law. Green said she believed settlement would leave that door open. A $225,000 settlement was reached in Aiden's parents' malpractice claim.
"The next mommy who walked into (a lawyer's) office, it could just be another thing they could say, 'Actually the court just ruled on this. No, no, no you can't do it.' I felt like taking a settlement would at least might get the ball rolling with the other lawyers. That this argument might have some traction," Green added.
Challenging the law
One of the lawyers she initially approached was Robert Keogh, the same lawyer who is now challenging the mandatory arbitration act in the local court.
Keogh could not speak about his interactions with Green, adding that his two new cases are separate circumstances. But Keogh has challenged the act before.
"I can think of two times that I challenged it in the Superior Court of Guam over the last 15 years and both times the circumstances were such that the court disagreed with us," Keogh said. "On one of the cases, they sent it back for us to get a deep discount from the American Arbitration Association, which they gave us. The clients I had then could afford the arbitration, so they did. Now we have clients that cannot afford it. And we're going to challenge it again."
The two cases at the local court involve the death of a newborn and a young boy.
Parties in the newborn case will explore mediation, according to court documents, while the parents of 5-year-old Asher Lubofsky, are pushing through.
The defendants in the case stemming from Asher's death, the Guam Seventh-day Adventist Clinic and others, are asking the case be halted pending arbitration — allowable by the mandatory arbitration law.
There have, in fact, been multiple unsuccessful challenges to the law in the Superior Court, according to the defense.
But the constitutional and Organic Act challenges have not yet been decided by the Supreme Court, Keogh countered.
Editor's note: This is the second article in a two-part series on the challenges of holding medical practitioners accountable under Guam's medical malpractice law.
There are two cases at the Superior Court of Guam that challenge the constitutional validity of a law that makes it difficult, some have said, to hold the island's medical professionals accountable. And while the Supreme Court hasn't weighed in yet on the law, these two cases may be what pushes the door open.
It isn't the first time that Guam's Medical Malpractice Mandatory Arbitration Act has been challenged. Part one of this series explored the law and the stories of grieving parents who contend it. In a medical malpractice case, the law forces arbitration proceedings, which is an out-of-court process to settle disputes. The costs, which could reach tens of thousands of dollars, fall on the parties - which in recent cases are the parents of children who were seen and diagnosed by doctors before they died. The financial burden is an unreasonable hurdle and a deterrent for individuals who are seeking relief, challengers say.
The Superior Court of Guam has ruled in favor of the law when challenged previously. However, Attorney Robert Keogh, who has a history with this act, said this decision, as well other unfavorable decisions, are not binding.
Keogh has two cases pending at the Superior Court of Guam challenging the constitutional validity of the law as part of negligence claims against health care providers.
Keogh told The Guam Daily Post in mid-June that a Superior Court judge is bound by the Supreme Court, and not the decisions of other Superior Court judges. Depending on the outcome of his current cases, the Supreme Court may be asked to decide on those questions, Keogh said. For Richard Pipes, there is no question that the law violates the Organic Act of Guam, the supreme law on island.
Pipes was one of the attorneys who prevailed in the landmark Awa v. GMH case that went before the 9th Circuit Court of Appeals. The original mandatory arbitration act was struck down in that case.
The 9th Circuit found the original law, enacted in the 1970s, unintelligible and inconsistent in requiring mandatory arbitration while at the same time preserving the right to a jury trial.
The current law, enacted in the 1990s, no longer contains language that expressly called for the right to jury trial. The new law contains provisions for a "trial de novo" at the courts - a trial that takes place as if it were the beginning of the dispute.
The Organic Act expressly provides protections found in the First to Ninth Amendments, including the right to trial by jury in civil cases in the Seventh Amendment, Pipes told the Post.
"However, the MMMA carves out a class of civil cases (medical malpractice cases) which causes plaintiffs to go through extreme, very costly, and time-consuming procedures before such cases can even be filed. These limitations clearly obstruct a citizen's right to a trial by jury in a civil case," Pipes said.
Despite the amendment, the law is patently similar to its predecessor. Michelle Green, a mother and tax attorney who challenged the current law at the District Court of Guam, points out the contradiction.
"The 9th Circuit was clear in its holding: a tort reform law that requires mandatory arbitration, and also guarantees parties the right to a new trial, violates due process rights and also makes medical malpractice litigation 'more costly and less efficient,'" Green said. "Remarkably, Guam’s current law continues to require mandatory arbitration and also guarantees the right to trial — even though those provisions are precisely why Guam’s first tort reform law was struck down."
The cost argument
Following the original law's demise, health care professionals on Guam generally stood behind mandatory arbitration as the current law was drafted in the 21st Legislature.
The shortage of doctors on island was noted at the time as well as the need for a mitigating rule on malpractice claims to make Guam an attractive destination for practice.
But the lack of binding arbitration in lieu of jury trial caused concern, and some groups and physicians could not support the measure without it.
Curiously, physicians noted that appealing at the courts — the law today — would only make matters worse by exposing health care professionals to potentially having to defend themselves twice.
Reducing costs was the express purpose of the law.
The legislative committee on health, ecology and welfare, in 1991 stated that a medical malpractice crisis reached a fever pitch in the prior two decades and many insurance companies refused to offer malpractice coverage or have raised the cost of premiums to prohibitive levels.
But that justification falls flat, according to Pipes.
"One of the professed justifications for imposing procedures which obstruct the constitutional right of trial by jury is the supposed 'medical malpractice insurance crisis.' Just like the original MMMA, the amended MMMA mouths the same justification, without any support other than a naked 'finding' that there is such a crisis. The fact is that no such crisis ever existed in Guam and does not exist today," Pipes said.
The pool of doctors on Guam was so small at the time of his lawsuit that no insurance company was willing to offer medical malpractice insurance, Pipes said. There had been so few malpractice cases filed in Guam back then that insurers could not calculate the risk, he added.
Today, insurers earn nearly $1 million on medical malpractice insurance premiums per year, according to records at the Department of Revenue and Taxation. It is one of the smaller insurance categories on Guam.
To opponents, the issue boils down to mandating arbitration first and how the associated costs and risks effectively precludes people from ultimately pursuing legitimate claims in court.
This is a wrong that should have been corrected many years ago, Pipes said.
The Post initially queried lawmakers about their thoughts on the law in April, when a letter was submitted to all lawmakers asking them to review the arbitration act. David Lubofsky, who is now suing the Seventh-day Adventist Clinic and others on behalf of his deceased son, issued the letter.
No senators responded then. This time, there were two.
Sen. Kelly Marsh said she and her staff were reviewing the law. Meanwhile, Sen. Telo Taitague said the issue remains an active topic for her team since receiving the Lubofsky letter.
Taitague said she is reviewing the court decisions and the history behind the law.
"A review of the experiences of other U.S. jurisdictions is also being done. We are taking a closer look at state policies mandating prelitigation screening panels which is the approach found in various states, including jurisdictions with the least number of medical malpractice cases," Taitague said. "This could be a solution for Guam."
Taitague's full comment: "This remains an active topic for my team and I since receiving a letter a couple months ago from Mr. Lubofsky - and your inquiry shortly thereafter. "I continue my research and due diligence to be better informed on the history behind Guam's medical malpractice statute, including court decisions concerning the constitutionality of current and prior legislation. I plan to meet soon with a few individuals for additional information on how and if we should proceed from here. "We are also reviewing white papers (Widener University School of Law's Medical Malpractice Screening Panels: An Update and Assessment) prepared on this topic especially as they discuss due process rights - and are connecting with the authors concerning our questions for possible solutions. "A review of the experiences of other U.S. jurisdictions is also being done. We are taking a closer look at state policies mandating prelitigation screening panels which is the approach found in various states, including jurisdictions with the least number of medical malpractice cases. This could be a solution for Guam."
Asher entered Guam Memorial Hospital where no doctor saw him for the last 12 hours of his life.