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Grieving families support repeal of arbitration law; lawyer of doctors defends it

By Johnnie Rosario

(Tumon, Guam) The grieving father of five-year-old Asher Dean Lubofsky, who died at Guam Memorial Hospital last year, and the daughter of a man fighting for his life at Guam Regional Medical Center broke down before a hearing of the Guam Legislature to repeal the Medical Malpractice Mandatory Arbitration Act.

Senator Therese Terlaje, the chairwoman of the legislative health committee and the senator taking the lead on a public review of the need to change or repeal the 1991 law, concluded the first of three hearings on the law before 4:45 p.m. today.

Sen. Therese Terlaje, center, begins the first of three hearings into the Medical Malpractice Mandatory Arbitration Act. To the left is Sen. Telo Taitague; to the right, Sen. Kelly Marsh Taitano.

David Lubofsky was with his son in the GMH Pediatrics Ward the morning of October 31, 2018, when he died.

"[W]hat has brought me here is the worst nightmare that a parent can face," Mr. Lubofsky testified before senators. "The death of a child is an unrelenting nonstop painful nightmare. To make it more painful and the reason that we are all here is about how our children and family members die due to medical negligence or malpractice needlessly and those negligent doctors who then walk away with no accountability or even a record of what they did to then see and endanger others on Guam."

Mr. Lubofsky took his son to his annual physical exam with Dr. Shinshin Miyagi at Seventh Day Adventist Clinic on October 29. Asher had been sick for a couple of days prior to his doctor visit; a fact Mr. Lubofsky made sure to tell the doctor. Dr. Miyagi, according to Mr. Lubofsky, spent 15 minutes with Asher for an exam that routinely took an hour, and not once checked his son's lungs with his stethoscope.

Asher Dean Lubofsky. SOURCE: David Lubofsky

Asher Dean was admitted to GMH the next day, was noted as having sepsis while admitted to the pediatrics ward, and was supposed to have been moved to the Intensive Care Unit that night. From 7 p.m. October 30, 2018 to the time he died 12 hours later, not one single doctor ever checked on Asher.

His testimony continued: "This meeting is about real people, it’s about our kids, it’s about the death of Asher, Baby Faith, Jqry-Wakyn, Aiden, Charlie and the list goes on and on of our dead kids due to negligence and a legal cover up with the Arbitration Act then the doctors who treated or mistreated these kids go on and treat your kids as if nothing happened. With Arbitration, they could kill many kids and no one would even know. Is there even records of these incidents?"

Mr. Lubofsky implored senators to repeal the law, testifying that the 'Apathy Act,' as he terms it, doesn't just make it impossible for poor- and working-class victims of malpractice to bring claims against bad doctors. He said the law causes some doctors on Guam to become and remain apathetic to the safety and care of their patients, as they realize no one will hold them accountable for their malpractice.

"We heard," he tells senators, "'I am sorry if you want to hold these people accountable in the death of Asher; you first have to enter arbitration and pay the huge expenses of it.' We heard this over and over. So, I kept asking, the obvious question, 'Can these doctors kill us, kill our kids and then walk away with no accountability as few can afford the process?' The killers of our family are protected by a legislative supported law, the Arbitration Act. How many families have buried loves ones due to negligence and were told the same thing, 'sorry, nothing can be done;' is there no accountability for doctors?"

The law, he told senators, makes it "so people of average or low income cannot afford to seek justice."

Doctors' attorney points out split costs

Attorney Mitch Thompson, who admitted to representing doctors against malpractice claims, said an important point to consider is that the cost of arbitration is split between the doctor and the person bringing the claim against the doctor.

Attorney Mitch Thompson

According to case filings in the Superior Court of Guam, the initial costs of filing the arbitration claim can range at around $60,000.

Using Mr. Thompson's justification for the effectiveness of the law, those average or low income claimants Mr. Lubofsky describes already are priced out of making claims when you consider that their initial cost burden is around $30,000, which a doctor with a high income arguably can afford.

Father fighting for his life following GRMC malpractice

Anelyn Lagrimas

Anelyn Lagrimas's father, a construction worker on the upcoming Tsubaki Tower, went into septic shock earlier this year, nearly died, was placed on dialysis, then slipped in and out of consciousness over a two-week period. He survived his medical ordeal twice.

Ms. Lagrimas described to senators how, during his stay at Guam Regional Medical Center, her father developed a bed sore that was recognized as a 'Stage 1' bed sore, or one that had recently developed. Hospital staff did not turn him over during his stay, as required under medical protocols, and by the time the sore was observed again, it had developed into a 'Stage 4' bed sore, which can be fatal. In his case, according to doctors, he likely will die.

Ms. Lagrimas left her father's hospital bedside to testify before senators and implore them to repeal the arbitration law. She told senators, "He had fought to stay alive, however due to negligence during his stay he had developed a bed sore that they had allowed to progress into a Stage 4, in a critical state where the bed sore was now a giant crater like wound that had reached the bone and is now the cause of his new infection that would most likely lead him back into septic shock where he most likely will not survive the second time around. Had I not done the research myself and file a formal complaint, they would not have attended to it or make me aware of his Hospital Acquired Stage 4 bed sore."

She continued in her testimony: "Because of my dad’s critical state, I took it upon myself to research how my dad got a crater like wound on his butt, when he had never had one before. I learned that abed sore doesn’t progress into Stage 4 overnight. It goes through stages 1, 2, and 3 and that with national standards are preventable at the early stage of 1 and 2, which I later found out started to occur in July 9, yet nothing was being done to treat it at the most basic level of care, he wasn’t being turned every 2 hours, or cleaned dry. Neither did the doctor or nurses inform us nor address it."

Ms. Terlaje, visibly moved by both Ms. Lagrimas and Mr. Lubofsky's testimonies, thanked both testifiers and applauded them for the research they had done and presented to senators.

No punches pulled on GRMC, GMH and SDA negligence

"GRMC boasts high quality care and quotes patients as partners, charging $3000 a day in Telemetry and close to $5000 a day in the ICU yet they couldn’t give him the simplest care to prevent something ultimately preventable," Ms. Lagrimas exclaimed to senators. "My dad is suffering, in pain and at risk of dying over something as small as a bed sore that they let progress for weeks before even doing anything. The worst feeling is to feel helpless, knowing more could have been done to prevent my dad’s suffering."

"How many have died over the years as this apathetic medical care, a product of arbitration protection, became part of our Guam Physicians culture?," Mr. Lubofsky lamented to senators. "Baby Faith, who passed at GRMC, never got simple lab tests as that doctor seemed to not care and was not practicing defensive medicine. Asher Dean Lubofsky went into the SDA clinic with symptoms, etcetera but never got a simple CBC blood test, or even the wellness exam that we were there for and paid for, which may have saved his life if that doctor was practicing defensive medicine."

Sen. Therese Terlaje thanks everyone for their participation

Senators Telo Taitague, Kelly Marsh Taitano, and Amanda Shelton participated with Ms. Terlaje in asking questions of those who testified and gathering more information for possible changes to or repeal of the law.

Ms. Taitague has previously told Kandit of months of research she has conducted on this issue and three legislative options she is exploring.

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Sep 22, 2019

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