Patients, providers on different sides of malpractice law
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In 2019, Walter Duenas’ son Robert was flown from Guam to Tripler Army Medical Center in Hawaii, due to an infection after a stomach operation on island.
As an infant, Robert had to have surgery to put a stoma on his belly, and he has had to have a series of surgeries throughout his life.
After the 2019 procedure, Robert’s stoma became so prolapsed that his large intestine began to protrude through his abdominal wall, Duenas said.
The boy was taken to Hawaii, but the problem was so severe that Robert’s large intestine could not be saved. Because he only has a small intestine, Robert loses large amounts of weight, Duenas said.
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Later, Duenas decided that he wanted to bring a claim of medical malpractice against the doctor who treated his son, but he learned that under Guam law he would be required to go through legal arbitration before filing in court. Once he found out how much arbitration costs, he became discouraged and did not pursue his claim.
Bill 112, introduced by Speaker Therese Terlaje, would remove the arbitration requirement and instate a process where magistrate judges could handle and review malpractice claims. According to Terlaje’s bill, the costs of arbitration are prohibitive for many residents.
But many health care providers do not support the bill, saying it would result in reduced services for patients and cause more people to have to seek care off-island.
The mandatory arbitration law, enacted in 1991, replaced a 1975 law that also called for mandatory arbitration. The earlier law stated that “higher judgments, settlements and the filing of suits are increasing the costs of malpractice insurance and making it unavailable altogether.”
Eliminating mandatory arbitration would make practicing on Guam financially riskier for doctors, and some Guam patients, including children with diabetes, might have to seek treatment off-island if that happens, Dr. Hoa Nguyen said.
Even with mandatory arbitration, Nguyen’s clinic, American Medical Center, pays about $500,000 a year in premiums for malpractice insurance, he said.
“Access to care on the island will be really, really hampered … and the specialists will go away. They are the highest risk,” Nguyen said. “Forget about recruiting your local talent to come back (and practice medicine).”
Nguyen said the standard of medical care on Guam is different than the U.S. mainland because Guam has a shortage of medical specialists. That means family practitioners, like Nguyen, normally treat patients who otherwise would be referred to a specialist. It’s not ideal, but the only other option, he said, would be to send those patients off-island.
If mandatory arbitration ends, Nguyen said his clinic, in order to reduce its legal exposure, would drastically change the way it operates.
It would drop 20% to 30% of its current patients because of their high-risk medical conditions, he said, and also carefully consider whether to accept new patients.
Nurse practitioner Carla Haddock said that she has spoken to many doctors who would likely reduce the scope of their care if the bill were to pass, due to concerns over liability.
What people don’t realize, she said, is that nurses, support staff, and other people involved in the medical field would be affected by the bill.
“I think it’s a poorly written piece of legislation,” said. She did not believe that magistrate judges had the medical expertise to make sound judgments about malpractice cases, if mandatory arbitration were repealed.
Instead of overhauling the system, lawmakers should get to the root of the issue, she said.
She was supportive of a bill that Vice Speaker Tina Muña Barnes had introduced in the past, which would create a fund to help residents pay for arbitration.
“(It) entailed us as part of our licensing fees, contributing to this fund or identifying a funding source, so that people don’t feel like they have to fork out, you know, thousands and thousands of dollars for this medical arbitration. If that truly is the problem, then let’s just fix that,” she said.
Meanwhile, Duenas said that he wants to testify in support of the bill, when it goes up for public hearing on July 7.
“My point is, I want to prevent doctors from doing the same thing they did to my son,” he said.
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