By Troy Torres
(Tumon, Guam) Attorney Robert Keogh, who is representing two families seeking Guam's courts to declare the Medical Malpractice Mandatory Arbitration Act unconstitutional, told senators that their law protects bad doctors by making it impossible for poor and middle class residents to keep them accountable.
Mr. Keogh gave the senators examples of hardships his prior clients have faced, and how potential clients just don't have access to justice at all.
"...[J]ust to give an example of cases that i've handled involving the arbitration statute: The claimants were husband and wife who went to a local urgent care clinic. Unbeknownst to them at the time the husband presented with classic symptoms of a medical condition ... [that] was misdiagnosed and by the time he was able to seek medical care in the Philippines, he suffered a permanently debilitating [stroke]. The arbitration process took nearly five years to complete. The claimants's cost of arbitration alone amount to $47,186. In addition to the $47,000 in arbitration costs, the claimants incurred other litigation expenses in the amount of over $66,000."
"In my years of experience, most, the vast majority of potential claimants who've come to me for a consultation do not have the resources to afford to go through arbitration."
The MMMA requires the victim of medical malpractice to bear the cost of the arbitration, which for most Guam families is way out of reach.
"In nearly all potential medical malpractice claims on which I am consulted, once the prospective expenses are described, the claimants choose not to pursue their claim due to their inability to afford those costs.
"How many of us can afford $113,000 to pursue a medical malpractice claim?"
This is about five time the average amount it takes to pursue a criminal defense.
"Victims of medical malpractice are oftentimes made uniquely vulnerable by the negligent treatment they have suffered. They are often subjected to debilitating consequences of the malpractice, they are out of work, financially unstable, and most likely physically compromised."
"They will not be made whole. The Mandatory Arbitration Act exacerbates their circumstances inordinately and in essence tends to erode rather than promote corrective justice."