By David Lubofsky
Is health care on Guam greed driven or consumer centered? This may seem like a difficult question to answer, but when we look at how some doctors refuse to take Medicaid patients or sought tax incentives to take the poorest patients on island or considering the Mandatory Medical Malpractice Arbitration Act (MMMAA) which all but prevents negligently injured or killed Guam medical consumers from seeking justice like everywhere else in the country, especially the economically disadvantaged patients, it’s clearer that greed compromises consumers rights and care on Guam; a factor in the demise of medical care on island. Bill 82-38 aims to improve health care through medical negligence accountability.
I arrived on Guam more than 50 years ago. Over the years, I have worked at several social services agencies and the government of Guam. I am a proud University of Guam graduate. My work life included working with the most disadvantaged individuals of all ages on Guam. This is what separates me from the others giving Bill 82-38 testimony who want to keep the status quo Mandatory Medical Malpractice Arbitration Act or MMMAA intact. I have no skin in the game, sort of speak, outside of having a dead 5-year-old child that died from documented wrongful death, medical negligence unlike those with pure financial loss concerns.
The people I speak of and whom I am here for today struggle to just get by on a daily basis with no recourse to resolve their medical negligence allegation claims, no avenue to become whole again. They do not have $80,000 in their pocket to file a case; the estimated cost if not more under MMMAA.
Living and working on island, especially with the manamko, I have learned that people are often too embarrassed to write testimony or even challenge doctors when a loved one is injured or dies from alleged medical negligence, not to mention sexual misconduct. Do not embarrass us, or doctors are always right, the victims are told or do not make us mamahlao.
This is a big part of the reason that it took 35 years to get this issue of the lack of medical accountability caused by the MMMAA to be brought to light. When the MMMAA was first introduced, it was done so as doctors, insurance companies etc. thought that providers were doing too much testing etc. to leave no stone unturned for a correct medical diagnosis, which was becoming a financial burden. The enactment of the MMMAA, to save money, was a full pendulum swing in the opposite direction to lessen concerns doctors had that they may be sued if a misdiagnoses, which then led now to one less diagnostic testing etc. and exposing patients to medical misdiagnosis, lack of proper treatment and sometimes medical apathy.
It is estimated that nearly ten die per month on Guam from medical negligence using national statistics.
BILL 82 is NOT about malpractice. It is not about poor people who cannot afford arbitration and for sure it is NOT about ASHER, my son. It is about having a fair affordable system for all medical consumers on Guam to be able to have their claims heard and attempt to become whole again, to protect their rights, to improve medical care and to protect the medical community against frivolous lawsuits.
Medical negligence is stated to be the third leading cause of death in the USA. Statistically, it is estimated that ten people die per month on Guam due to medical negligence. It is also estimated that one percent of doctors commit thirty-two percent of medical malpractice nationally. This number is likely much higher on Guam with no current medical accountability or ability to identify these repeat medical negligent doctors or to provide mitigation to prevent such negligent reoccurrences due to the MMMAA, unless one is very affluent.
Guam is the only place in the USA that affords this kind of cover up or protection.
The biggest myth is that Guam will not be able to recruit or retain doctors if Bill 82 becomes law. This is absolutely not true. No one has shown statistics or recruiting issues that will back this up. I have been in meetings here at the legislature in the past when doctors were asked if they would leave if reforms were passed. All said NO. I have asked Guam doctors the same thing on my own, all said NO.
According to Dr. Shieh (Guam Post), Guam does [not] need doctors, just specialists. The MMMAA makes recruiting specialists very difficult as doctors on Guam are protected to work outside of their own specialties, so when a new specialist arrives he or she in fact must try to set up a practice with not only a small population on Guam, but making it even more difficult is that he or she must compete against other local doctors who are not specialists but have been practicing in the new doctor’s specialty area making big bucks thanks to the MMMAA. Attorney Keogh called this malpractice in and of itself working across trained fields into other areas.
As some of you know, presently there are serious allegations by one Guam doctor against another Guam doctor of doing procedures that may not be necessary with questionably trained staff using lower thresholds for prescribing treatments. The accusing doctor was told not to worry about malpractice when he was reluctant to do such things. He was told that no one would testify against him. These documented allegations give a good example of why the MMMAA has failed and how the people of Guam may have been misdiagnosed, injured, and overcharged.
Doctors come to Guam now with histories of medical negligence or sexual misconduct and easily get licensed by the Guam Board of Medical Examiners. They know they can work here without malpractice concerns and cannot work easily anywhere else in the country. They are not even required to have malpractice insurance. The Guam Board of Medical Examiners continues to license people with such histories as per the meetings I have listened to over the last six years. Some of these doctors then came to Guam and injured Guam patients. Even the past Assistant AG, Rob Weinberg, for the Medical Board stated that Guam is known as a place where washed up doctors can find work.
The only part of this Bill that I would change is to not have the Guam Board of Medical Examiners involved. They have a history in near seventy cases under Dr. Berg over the last 7 years of never ever deciding in favor of a complainant against a doctor, and the Chair has gone out of his way to prevent such accountability from coming to fruition. Also, they have a history of not acting on impartial off-island investigation reports paid for by tax dollars that find fault with doctors.
In summary, the [current] Mandatory Medical Malpractice Arbitration Act:
- Makes it more difficult to recruit specialists to work on Guam.
- Prevents identifying repeat medical negligence offenders and providing mitigation before others are injured or killed.
- Allows for fraudulent and unnecessary medical care by undertrained staff or doctors, knowing they will not be held accountable.
- Correlates with higher costs of medical care on Guam with no control or monitoring of unnecessary procedures.
- Prevents adjudication and claims as allowed everywhere else in the country to make victims whole again or to take care of long-term medical issues.
- Gives the financial responsibility to taxpayers and insurance companies thru medical services etc. required to pay for injured victims that need care when they cannot seek accountability from the medical field on Guam, raising costs for the rest of us on island.
- Correlates with the demise of medical care on Guam.
I WILL END BY ASKING ONE QUESTION OF THE GUAM LEGISLATURE. WOULD YOU PASS BILL 82-38 IF YOU KNEW IT WOULD SAVE A CHILDS’ LIFE OR SEVERAL LIVES ON GUAM? THIS BILL IS ABOUT SAVING LIVES NOT SAVING MONEY FOR DOCTORS OR PROTECTING YOUR DONORS. NOT PASSING THIS BILL MEANS WE HAVE TO SACRIFICE OUR LOVED ONES ON GUAM AND THERE ARE CLEAR STATISTICS THAT SUPPORT THIS.
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David Lubofsky is a resident of Tamuning
