The legislation replaces the Guam’s Medical Malpractice Mandatory Arbitration Act. Discussion at the hearing on the arbitration act began with two familiar faces – attorneys who have argued on behalf of patients or doctors involving medical malpractice claims – Mitchell Thompson and Robert Keogh.
Bill 112, also known as the Medical Malpractice Pre-Trial Screening Act, is the result of previous hearings and calls to change Guam’s arbitration law. According to Speaker Therese Terlaje, the bill would:
• Replace the costly three-person arbitration panel
• Allow a local magistrate to confidentially consider claims, consider expert testimony and identify frivolous claims
• Allows for alternative confidential arbitration or mediation with consent of both parties
• Applies only to those healing arts professions covered under the current MMMA Act
• Applies the current standard of care
• Continues application of the Government Claims Act for government providers
The bill has proven unpopular with the medical community. Some doctors have claimed that the bill will make practicing on Guam too costly and will only result in fewer medical services for patients.
Opponents of the arbitration law argue that high costs deter the filing of legitimate malpractice claims.
The speaker’s office will continue to accept written testimony through July 6. Complete testimonies on Bill 112 from doctors, patients, attorneys and insurance providers can also be found on Terlaje’s website.
Thompson, who has defended against malpractice claims, echoed some concerns from the medical community Wednesday, although he was speaking only for himself.
He outlined what he considered to be major failings of the proposal, including the lack of a screening panel inclusive of a medical provider, the lack of financial disincentive for continuing litigation and the lack of a cap on non-economic damages (awards for pain and suffering) in Guam law, which he said should be considered if the Legislature is looking to change the statute to be in line with the rest of the U.S.
Under Bill 112, a magistrate judge would oversee a malpractice claim and determine its merit before the parties could proceed to trial. The parties could still agree to pursue arbitration or mediation anytime during the process.
Doctors have nonetheless criticized this proposal, claiming that a single judge who isn’t a physician could not properly measure a breech of standard of care.
Thompson said it appeared most states had screening panels with at least one health care provider on board, and the reason for this is to provide the expertise to evaluate competing expert witness claims.
According to Thompson, Bill 112 is not the answer to the concern that the law makes it too costly for poorer residents to pursue valid malpractice claims. The solution should be to provide financial support to these residents through a fund, a proposal earlier submitted by Vice Speaker Tina Muna Barnes, Thompson said.
But Keogh, who has represented claimants in malpractice cases and challenged the constitutional validity of the arbitration law, questioned why a fund should be established to pay private arbitrators, when magistrate judges, who are already trained as adjudicators and paid for their positions, are able to hear these cases.
Similarly, and to his colleague’s point about placing a medical provider on a screening panel, Keogh questioned who would pay for the doctor and whether doctors would be interested in seating a panel at all.
“And the local doctors invariably would be biased against any malpractice claim. Judges are trained to overcome, to not have any biases, to overcome any kind of personal feelings on a case,” Keogh said.
Addressing this issue, Speaker Therese Terlaje, the prime sponsor to Bill 112, stated that she found 23 U.S. jurisdictions which do not have screening panels and allow claimants to proceed straight to trial.
“I just want to stress that this bill still provides screening, still provides a different process to doctors that is not allowed to any other sector of our community, and is not allowed in every other jurisdiction,” Terlaje said.
Vice Speaker Tina Muna Barnes initially co-sponsored Bill 112 but retracted her support recently, citing concerns from doctors and patients. Her arbitration assistance proposal, introduced in 2019, would have been limited to individuals under the Medically Indigent Program and would have been supported through licensing fees.
However, the government of Guam would also have deposited $100,000 in seed money through the 2019 surplus, funding that never materialized for anything other than deficit reduction. The bill was ultimately withdrawn.
When her office calculated the funding Barnes’ proposal would generate, Terlaje said it appeared obvious that it would not cover more than three cases based on arbitration rates described in public hearings.
“It looked like it was either going to require additional fees by the doctors or additional taxpayer money to be put in,” Terlaje said. “That’s one of the reasons why we looked for the lowest costs for the taxpayer in this magistrate (judge) … If parties do not like to go to a magistrate … they can agree to arbitration according to this bill. And magistrates are really for when they cannot agree. We’re trying to find some person at low cost to objectively handle these cases.”
To Thompson’s other point regarding disincentivizing continuing litigation, Keogh stated that a magistrate judge’s decision is admissible under Bill 112, and if that decision is not in the plaintiff’s favor, they will know that a jury will hear the case is without merit.
“That is clearly a disincentive to appeal,” Keogh said.
Establishing a cap would also be problematic as injuries from malpractice may affect a person for the rest of their life.