By Troy Torres
David Lubofsky and Monica DeVera's fight to hold negligent doctors accountable for their malpractice is meeting resistance from doctors now that Speaker Therese Terlaje's medical malpractice reform Bill No. 112 is moving through the legislative process.
Mr. Lubofsky is no stranger to Guam doctors's opposition to his cause. Since his son, Asher Dean, died in 2018 at Guam Memorial Hospital from what a federal audit described as negligence, Lubofsky has been trying to hold the doctors, nurses, and physician assistant involved in Asher's death accountable.
He filed complaints against Drs. Shinshin Miyagi, John Garrido, and Dennis Sarmiento, a physician assistant from SDA Clinic, and unnamed nurses who were supposed to be caring for Asher at GMH the 20 hours before he died.
It has been nearly three years since Asher died October 31, 2018, and none of the licensing boards, where Lubofsky filed his complaints, have done anything to hold the involved providers accountable for what happened that night.
So, the grieving and relentless father, on the date of what would have been Asher's eighth birthday (June 15) filed a lawsuit in the Superior Court of Guam to force those licensing boards - the Guam Board of Medical Examiners and the Guam Board of Allied Health Examiners - to investigate these men and women.
"Dr. Garrido, Dr. Sarmiento and other licensed health professionals acted in acted in an unprofessional, improper, incompetent, and unlawful manner in the monitoring and treatment of Asher," the lawsuit states. The petition for writ of mandamus states neither the GBME nor the GBAHE "have adopted rules or regulations related to the investigation of complaints or reports regarding its licensees."
Mr. Lubofsky is asking the court to command both boards to adopt the required rules and regulations to conduct investigations of its members, and to post on their respective websites profiles of each of its members as required by law.
Meanwhile, Lubofsky and DeVera's advocacy in the legislative arena continues as well, with Speaker Therese Terlaje sending notice that on Wednesday, June 23 at 5 p.m., she will be convening the first of three hearings on her Bill No. 112-36 to reform the Medical Malpractice Mandatory Arbitration Act.
According to the notice of the June 23 hearing, "The Informational Hearing will feature an introduction of Bill No. 112-36 (COR) and comparison with current Medical Malpractice Mandatory Arbitration law (MMMA), provided by the bill’s sponsor, members of the Guam Bar Association, and malpractice insurance representatives.
Summary of Bill 112-36:
- Replaces the costly three (3) person arbitration panel - Allows 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 hearing will take place in the Guam Congress Building Public Hearing Room.
UPCOMING HEARINGS on Bill 112-36 (COR)
WEDNESDAY, JULY 7TH AND MONDAY, JULY 12TH AT 5:00 PM- 8:30 PM: Medical professionals and the public are invited to submit testimony on the bill on July 7th or July 12th at the Guam Congress Building or via Zoom. Those interested in presenting written or verbal testimony should contact the Office of Speaker Therese Terlaje at (671) 472-3586 or firstname.lastname@example.org byJuly 6, 2021. All documents submitted relative to Bill 112-36 will be available at http://senatorterlaje.com/mandatory-medical-arbitration/.
All hearings will be broadcast on GTA TV Channel 21, Docomo Channel 117/112.4, and via Guam Legislature Media on YouTube. Recordings of the hearings will be available on the Guam Legislature Media YouTube Channel after the hearings. In compliance with the Americans with Disabilities Act, Individuals in need of assistance or accommodations should also contact the Office of Speaker Therese M. Terlaje.
Bill 112 was sponsored by Therese M. Terlaje, Telo T. Taitague, Joanne Brown, Tina Rose Muña Barnes, Joe S. San Agustin, V. Anthony Ada, Telena C. Nelson, Christopher M. Duenas, Clynton E. Ridgell, Amanda L. Shelton, Jose Pedo Terlaje, and Sabina F. Perez.