By Jacob Nakamura
Guam Memorial Hospital pediatrician Dr. John Garrido wants Kandit News Group and David Lubofsky censored from discussing the death of Asher Dean Lubofsky on October 31, 2018. Asher Dean is David Lubofsky's son, who was five years old, when he died at GMH only hours after he was admitted with pneumonia-like symptoms. Garrido was one of two doctors assigned to his care.
"I request that Mr. Lubofsky and Kandit News Group withdraw and cease all their negative comments/photos in all media and post a public apology," Garrido wrote to the Guam Board of Medical Examiners in a recent response to Mr. Lubofsky's complaint to the GBME about Garrido and others.
Garrido is referencing an October 7, 2020 article by Kandit News titled, Complaint: GMH pediatrician was no-show while boy was dying, where Kandit reported on Mr. Lubofsky's complaint against Garrido and his reasons for complaining.
In his GBME response, Garrido says Kandit published a picture of himself with one of his patients. He says this violates his patient's privacy rights. Kandit did publish the picture below in the October 7 story. The picture was published by the parties of that picture on social media, making the picture part of the public domain. More importantly, no one but Garrido appears in that picture.
The so-called "disparaging remarks" were not made by Kandit News Group, but by the U.S. Centers for Medicare and Medicaid Services, which had been critical of the care or lack thereof provided by Garrido in the hours preceding Asher Dean's death. U.S. CMMS made these comments in a report following a surprise inspection of GMH in 2019. Asher Dean's death was one of several the federal agency came to audit during the inspection.
As a result of David Lubofsky's crusade to improve the delivery of medical care on Guam following his son's death, Speaker Therese Terlaje, Sen. Telo Taitague, and 10 other senators filed Bill No. 112, which will reform the Medical Malpractice Mandatory Arbitration Act.
The MMMAA, Mr. Lubofsky has argued in both local and federal court, strips the poor and the middle class of their right to due process when pursuing actions that will hold negligent and otherwise bad doctors accountable for their conduct. The law requires arbitration before any doctor or medical provider on Guam can be sued in court. The person accusing the doctor or medical provider of negligence or malpractice must pay for the arbitration. The costs start at around $60,000 in upfront cash, making the entire process impossible for poor and middle class citizens to afford.
Ms. Terlaje and Ms. Taitague's bill will scrap the requirement for arbitration and set up pre-trial screening panels that will determine whether a patient's complaint is supported by enough facts to go to trial. The legislation, if enacted, will weed out so-called frivolous claims, reducing liability costs for doctors on Guam.
We include the text of the October 7, 2020 article below for easy reference:
Guam Memorial Hospital pediatrician Dr. John Garrido is the subject of a complaint made by David Lubofsky to the Guam Board of Medical Examiners in the wrongful death of Mr. Lubofsky's son, Asher Dean.
Asher Dean was only five years old, when he died at 7 a,m. on October 31, 2018 at Guam Memorial Hospital. He was admitted the day before, and his condition worsened gradually over night. According to Mr. Lubofsky's previous statements to Kandit News, his son was never admitted to the ICU despite his deteriorating condition, the nurses never set him up with a breathing tube despite his labored breathing, and a doctor never checked on him through the night.
An investigative report on Asher Dean's death by the U.S. Centers for Medicare and Medicaid Services secretly published May 3, 2019 confirmed Mr. Lubofsky's statements, and more. Asher Dean is identified in the CMMS report as Patient 6.
According to the report, three doctors - Medical Staff #14, Medical Staff #15, and Medical Staff #16 - were responsible for Asher Dean's care during his overnight stay at GMH.
The report went on to detail the notes written into Asher Dean's chart during his stay in the Emergency Room, then the Pediatrics Unit. From his admittance at 11 a.m. on October 30 to his death the next day at 7 a.m., the boy was suspected of strep throat, pneumonia, and presumptive Dengue Fever. His fever, cough, chest congestion, facial color, and oxygen level became worse with each passing hour. His breathing became more labored throughout the night.
"During an interview on 5/1/19 at 2:00 p.m, with Medical Staff #16 acknowledged that he conducted the Medical Peer Review and did take a quick look at the nursing notes and VS but identified no concerns with the medical care given to Patient 6." - CMMS report
Mr. Lubofsky constantly asked the nurses on duty for a doctor to see his son, and for his son to be intubated so he could breathe and rest. The nurses, on the order of doctors whom they had called, gave the boy Albuterol and Tylenol for his symptoms.
The following are successive notes on Asher Dean's chart:
10:24 PM (October 30, 2018) - Patient refusing O2 via NC, Respiratory Therapist (RT) sets up O2 mist 28% on 6 Liter (L)
11:38 PM - Chest retractions, nasal Flaring, coarse crackles (an abnormal breath sound), head of bed elevated (HOB), face mask at 6 L
11:46 PM - Temperature (Temp.) 102.8, Tylenol given per order and cooling measures implemented
Notes over the next seven hours show the boy's life was slipping away as it became more difficult for him to breathe, blood began to secrete from his nares, his rash spread, and he began hallucinating. Still, no doctor came by his bedside.
6:53 AM (October 31, 2018) - Nurse checked patient noted and he is unresponsive with faint pulses. CPR initiated and code blue called - refer to code sheet
Still, no doctor came.
7:00 AM - Pulseless patient (Pt).
7:01 AM - Pt. intubated by ER MD, advance cardiac life support (ACLS) protocol followed, primary care physician (PCP) informed, intensive care unit (ICU) nurse and nursing supervisor present during code.
7:15 AM - Patient Asystole
7:16 AM - Time of death called by ER Doctor
Mr. Lubofsky reported these events to the Guam Board of Medical Examiners, the Allied Health Board, and the Guam Board of Nurse Examiners in 2019, but to no avail. At the time, there was no public record of what happened. He eventually filed lawsuits in the Superior and District Courts of Guam for the wrongful death of his son.
Over this past summer, Mr. Lubofsky caught a break. GMH was forced to disclose the May 3, 2019 CMMS report, which implicated the nurses, respiratory therapists, and doctors in the death of Asher Dean.
Based on the report, Mr. Lubofsky renewed his hope that Guam's medical licensing boards could evaluate the newly-available evidence and help to prevent wrongful deaths like Asher Dean's from happening again.
In his complaint against Asher Dean's pediatrician, he wrote to the GBME:
"October 30/31,2018, ASHER DEAN Lubofsky was hospitalized at Guam Memorial Hospital. Dr. Garrido was the assigned Pedia-Physician. Dr Garrido came into Asher’s room at 7pm approximately on the 30. Asher was laying on his stomach at that time and I had the TV on for him, but he was not watching it due to discomfort. After that, Dr. Garrido never, not once came into my sons’ room to monitor or check him at any time all night. I am not sure if he was the Physician on call also as the on-call doctor received messages from nurses that Asher’s condition was getting much worse. I was told by nurses that Asher needed to get into ICU, but as no doctor came to check him, or called or could be reached he was never admitted. Asher passed the next morning at 715am on the 31 . Dr. Garrido, if in fact the on-call doctor, did not follow protocol at the hospital. He also even if not on call did not provide proper standard of care for a dying child in the Pedia unit. Children who require intermediate- or higher-level care need a high-level health care professional who is in-house and readily available to respond to the patient immediately should the child’s condition deteriorate. Dr Garrido should have known that Asher’s condition was deteriorating as he was the pedia doctor assigned, also Asher had labs that were very high. He should have let the other doctors on duty know the same. Treating Pedia patients from home is not in line with a standard of care for a child who is dying and who was not stable. Interestingly, 5 minutes after Asher passed away, Dr Garrido also ran into Asher’s room. Where was he all night? He did not come in to assess Asher nor do any follow up. IF he had gotten into the hospital or did what is appropriate as outlined above that would be appropriate standard of care. To sit at home or wherever waiting for calls from nurses does not meet standard of proper care with a child who has labs off the chart and who require intermediate- or higher-level care. He did not accurately assess Asher with high labs and in pain and should have put him at a higher level of care. Waiting for nurses or blaming nurses for the death of a patient is very inappropriate even with failings in the system, why didn’t Garrido put Asher into the Pedia ICU? The unit was not busy that night."
Mr. Lubofsky added a note to the GBME:
"PLEASE NOTE, WE ARE REQUESTING A COMPLETE IMPARTIAL REVIEW THAT DOES NOT INCLUDE GMH EMPLOYEES OR DOCTORS TO PARTICIPATE WITH THE INVESTIGATION OR TO MAKE DECISIONS IN THEIR CAPACITY AS PART OF THE GBME. PLEASE, WE HAVE BEEN THRU THIS BEFORE AND EXPECT AND HOPE TO BE INVOLVED IN THE INVESTIGATION AS A WITNESS AND NOT RELEASE THE RESULTS OF THE INVESTIGATION TO THE MEDIA BEFORE YOU INFORM US. THE LATE DATE HAS TO DO WITH THE CMS REPORT BEING AVAILABLE NOW."
