Opinion: Catch-22 of the MMMAA

By David Lubofsky

The Catch-22 of the Mandatory Medical Malpractice Arbitration Act (MMMAA) which protects doctors, not medical consumers is that it can also deter the island from recruiting specialist doctors. It amazes me every time that I hear our so-called leaders in the legislature or new candidates running for office buy into generic information and state that Guam will not be able to recruit doctors or will lose doctors if the law is changed. This is not true. I sat in a hearing where many doctors were asked if the law was changed, would they leave. All of them said no. Where will they go with NO MEDICAL NEGLIGENCE ACCOUNTABILITY or where they do not have to even have malpractice insurance? 

This is also shortsighted thinking that doctors would leave, or that we cannot recruit doctors, nor does it look at the bigger picture of how the MMMAA itself, in fact, deters the recruitment of specialist doctors. 

David Lubofsky and his late son, Asher Dean

Let us also be clear, per Dr. Shieh, Guam does not need doctors, just specialists. Shieh said, in response to an initiative by former Senator Rodriguez to recruit doctors, back in the 34th Guam Legislature that “there is no shortage of health care professionals — only specialists.” Shieh also said, at the time, seemingly self-serving, that if Guam recruits foreign doctors, then he should be able to work in those countries. REALLY!!

It is interesting, as an aside, to note that when the government entertained a way to recruit doctors, Shieh said we do not need doctors, just specialists, then when the government discussed accountability for medical negligence, he then stated we need doctors, but will not be able to get them if the law changes. His opinion seems reflective of how medical Bills or proposed laws will impact him and his colleagues, not the greater good of Guam’s medical consumers. 

This leads us to the BIG Catch-22 of the MMMAA and how it impacts medical care on Guam. Guam doctors, under the MMMAA can work outside of their areas of training or specialties to provide medical intervention to patients if no specialist is on island, or even if there is a specialist on island, as nothing precludes any doctor from doing procedures outside of their area of training when needed, or when not needed. Even though this no doubt sounds great and is, especially so in emergencies when it may be the only option, but it is the very definition of malpractice, per Attorney Keogh, as stated during the Bill 112-36 hearings. For emergencies, doctors should be allowed to treat patients without fear of a lawsuit. 

With that said, when not an emergency, doctors who work outside of their areas also markedly increase their financial portfolios as they can charge extra for these specialist services, but patient care may suffer as Guam patients are not being seen by real specialists, again, especially outside of the emergency scenario, in the needed medical area. Doctors become cancer surgeons, as an example, but they did not do that in the past. This is great, sounds wonderful at first glance, filling a need, but what are the downsides. 

The issue is that real specialists who want to set up shop on Guam, who come here to explore the possibility, find it difficult to compete with local doctors who are practicing outside of their areas and in essence are competing with any specialist who wants to open a practice on Guam. This deters specialists from setting up shop on island due to a lack of a specialty patient population to support their practice. 

So, even though the local doctors say and do fill a need of lack of specialists and are able to work outside of their areas due to the MMMAA, which would not be allowed anywhere else in the country, and it becomes one justification for the MMMAA, this in fact also negatively impacts recruiting real specialist from coming to Guam and treating the people of Guam. The MMMAA, no doubt, figures into specialist coming or not coming to Guam and may be a key factor in issues of poor care that has made residents seek medical help off island. It is the Catch-22 of the MMMAA.

We need to look at the bigger picture and stop taking advice from the medical community as if its gospel but realizing they may also spin MMMAA justifications to keep their practice financial portfolios healthy. There needs to be a compromise to get specialist onto Guam and not have to compete with local doctors who are practicing outside of their areas, or as Keogh said, by definition, committing malpractice under the MMMAA. 

Guam has great doctors, but changes to the malpractice law will also entice great specialist doctors, improve quality of care, protect patients while identifying medically negligent doctors who are still licensed by the Guam Board of Medical Examiners on Guam and then continue to endanger the people of Guam. Guam has the reputation of being known as the place for washed out doctors, per the Asst AG. Rob Weinberger. The MMMAA allows for this and perpetuates this reputation.

Good doctors do not come to Guam to hide or are not concerned about the MMMAA, except in that they must compete for patients with any non-specialist local doctor protected by the MMMAA. 

David Lubofsky is an advocate for victims of medical negligence and sexual misconduct by Guam doctors. He is a resident of Tamuning.

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