Mandatory malpractice arbitration law, potential fix compared
On Wednesday, two years after the attempt to fix a law that requires mandatory arbitration for medical malpractice claims on Guam, lawmakers held another informational hearing to solicit community input.
A comparison between the current law and proposed bill was provided on Wednesday by two attorneys who have been on either side of malpractice claims: attorney Mitch Thompson, who has been a defense lawyer for healthcare providers in malpractice cases, and attorney Robert Keogh whose personal injury practice has assisted a number of claimants over the years.
The arbitration requirement has been called costly and prohibitive, preventing residents who wish to file a claim from ever doing so, with the average costs estimated at $40,000 to $60,000. Bill 112, introduced by Speaker Therese Terlaje, would create a new process for screening claims through a magistrate judge.
But many members of the medical community have come out in opposition to the bill, saying that a repeal of the current law would open the door to frivolous claims, rising malpractice insurance costs, and force doctors to reduce the scope of their practices.
Thompson pointed out that most states have some sort of screening panel for malpractice claims, in order to protect doctors from unnecessary claims. The current law requires a three-person arbitration panel, with one medical professional on board who could provide the expertise that a magistrate could not, Thompson said.
If Bill 112 was passed, he said, there would be nothing to deter claimants from going to a jury trial, if they did not like the outcome of their arbitration. The current law, he said, requires that a party that brings the case to jury trial would have to pay the other side’s court fees if they were unsuccessful.
Something similar to an arbitration fund, which Vice Speaker Tina Muña Barnes had introduced in the last term, would make more sense, he said. Muña Barnes withdrew her co-sponsorship of Bill 112 immediately before the hearing on Wednesday, along with a petition signed by hundreds of healthcare providers.
Terlaje reminded all present at the hearing that any registered lobbyist would have to disclose that information under Guam statute.
Terlaje said that 23 jurisdictions in the U.S. did not have a screening panel and that Guam was the only one that had required arbitration. The bill, she said, would still provide a screening process.
Keogh argued that the costs imposed by the current law forced malpractice claims to be extremely rare. Of the over 1,200 personal injury claims he had handled on Guam since 1997, only 23 had been malpractice claims. Six were governed under a different statute than the mandatory arbitration law, five were withdrawn, five went to arbitration and only one ever went to trial.
Arbitration companies were expensive to hire, Keogh said, with one case handled having to pay $10,000 just to register, with most companies charging $450 or more an hour.
Specialists on Guam that provided consultations and services outside of their immediate scope on Guam, due to shortage of specialists, would not be penalized if Bill 112 were to pass, he said.
He said that the costs of court fees and hiring expert witnesses to go through a magistrate judge would still be a deterrent from people taking cases to trial if they were unhappy with the outcome of their claims. The high costs imposed by the current law only served to deter most people from filing a claim at all.
As for an arbitration fund, “Why do we need to have a fund to pay private arbitrators to handle cases?” he said.
The vice speaker asked Keogh whether he had provided any recommendations to the current bill. He said he did when asked, but had never received any payment for it. She asked Victor Paulino of Cassidy’s Associated Insurers Inc. whether the bill could raise the costs of malpractice insurance for providers on Guam.
Paulino said that it was possible if the number of claims against doctors went up.
Terlaje closed by asking lawmakers to keep an open mind on the matter. It was difficult to determine what the true impacts of the current law were, she said, but the benefits of it were beginning to come under doubt.
There was immense pressure from the medical community not to repeal the law she said, but something had to be done to fix the issue and provide a less traumatic way to resolve malpractice claims for all parties involved.
Reach reporter Joe Taitano II at firstname.lastname@example.org.