Month: December 2020

Senators Therese Terlaje and Telo Taitague Introduce Medical Malpractice Pre-Trial Screening Legislation

Bill No. 430-35 (LS) Prioritizes Access to Justice for Victims and Fairness for Medical Community

FOR IMMEDIATE NEWS RELEASE (December 15, 2020- Hagåtña, Guam)

Today, Health Oversight Chairperson Therese Terlaje and Minority Leader Telo Taitague introduced Bill No. 430-35 (LS) which replaces Guam’s nearly 30-year-old Medical Malpractice Mandatory Arbitration Act (MMMAA) with a less costly pre-trial screening proposal. The MMMAA requires individuals claiming to have been victims of medical malpractice, to first arbitrate their complaint before filing suit in court.

If approved, Bill No. 430-35 (LS) allows a claimant (plaintiff) to file their claim in court where a Magistrate Judge is responsible for determining whether there is evidence to support the conclusion that a healthcare provider (defendant) failed to comply with the appropriate standard of care. The Magistrate Judge may consider expert testimony, and shall keep the complaint, proceedings, and opinion sealed until 30 days after issuance of opinion; however, the Magistrate may order the opinion sealed temporarily for an extended period or permanently upon agreement by the parties, if a trial is not pursued. Either party may pursue their right to a jury trial within 30 days after the Magistrate Judge renders his or her opinion by notifying the court of the party’s intent to proceed to trial.

Additionally, parties may at any time by mutual consent, submit their dispute pursuant to the provisions of either the Guam International Arbitration Law or Guam’s Mediation statute. Claims against any defendant that is for $10,000.00 or less shall be exempted from the new legislation if they are filed with the Small Claims Division.

“Given that we are nearing the end of the term of the 35th Guam Legislature, it is our intention to immediately enlist public feedback but it is likely additional hearings on medical malpractice reform will have to be further pursued in the 36th Guam Legislature. We value the input of everyone in the community and look forward to further discussion regarding this legislation,” stated Senator Therese Terlaje.

Last year, the 35th Guam Legislature – through the leadership of health committee Chairperson Therese Terlaje – held a series of informational hearings on Guam’s MMMAA. The very difficult but necessary dialogue brought to light legitimate concerns from families of alleged victims about the high cost of the arbitration process serving as a barrier to asserting viable medical malpractice claims and to the pursuit of justice.  We also heard the concerns from doctors that a repeal of current law may increase frivolous lawsuits, potentially increase malpractice insurance costs, deter doctors from providing emergency care outside their specialty, and ultimately impact the quality and extent of patient care they provide.

“Following the hearings, I have been working diligently, to consider alternative pre-trial procedures used in other jurisdictions and to draft viable and balanced legislation for Guam that takes all concerns into account, as much as possible yet provides some justice for those who cannot afford arbitration,” stated Senator Therese Terlaje.

“Senator Therese and I introduced Bill No. 430-35 (LS) after many months of research and discussions with families of medical malpractice victims, healthcare providers, and a series of public informational hearings conducted by the legislature. This measure prioritizes access to justice for victims and fairness for Guam’s medical community, particularly after the U.S. District Court of Guam recently issued an order asking the Supreme Court of Guam, ‘is failure to comply with the MMMAA’s arbitration requirement equitably excused when an indigent party cannot reasonably afford the non-administrative fees of any organization authorized to arbitrate under the Act and no alternate means of completing arbitration is available?” Senator Taitague stated.

“It appears the constitutionality of the MMMAA is in question. If there is a determination by the court that the MMMAA is unconstitutional, healthcare providers could be left vulnerable to baseless medical malpractice lawsuits which would harm not only their practice but the broader healthcare system on Guam. Bill No. 430-35 (LS) protects a victim’s right to legal action – while ensuring that a medical malpractice case is properly reviewed before moving forward through the court system, mediation, or arbitration.” Senator Taitague further stated.

For additional information regarding the bill or press release, please contact Senator Senator Therese Terlaje’s office at 472-3586 or send an email to senatorterlajeguam@gmail.com or Senator TeloTaitague’s office at 989-8356 or send an e-mail to senatortelot@gmail.com.

Click on this link to download a copy of Bill-No.-430-35-LSDownload

Statement from Senator Therese Terlaje regarding the draft 2020 Programmatic Agreement for regarding military training and testing on and within the surrounding waters of the island of Guam

Please see the December 13th article in the Pacific Daily News regarding the Programmatic Agreement regarding military training and testing on and within the surrounding waters of the island of Guam (PATT) below. https://www.guampdn.com/story/news/local/2020/12/13/guam-govguam-officials-new-military-agreement-not-happy/6527313002/

Please see Senator Therese Terlaje’s full statement to the media regarding the PATT below:

“While the proposed 2020 agreement is only 14 pages, the Appendix A is 96 pages long and contains important information regarding training activities and potential training areas that needs careful review.  Appendix B also proposes Standard Operating Procedures regarding the handling of human remains uncovered due to “any action, undertaking, or activity (including those caused by natural occurrences such as erosion) on DoD-retained lands on Guam”.  It is unclear if the language in the SOPs will be applied to any activity including clearing or construction, not just training and testing activities in this PA, which could possibly widen the scope of this proposed 2020 Programmatic Agreement to any uncovered human remains disturbed by the military. The SOPs must be reviewed thoroughly and compared to existing local reburial guidelines. We should not feel rushed into an agreement without complete confidence that it is in the best interest for the community.  

I am very concerned about the increased number of training areas in the proposed 2020 PA that were not included in the 2009 Programmatic Agreement.  At first glance it appears that 20 different training areas were identified outside of Anderson Air Force Base (which includes DanDan Malojloj, Camp Blas South, Nimitz Radio Barrigada, Piti Floating Mines, Agat Bay Mine Neutralization Site, Nearshore waters of NBG and other areas), and 7 training areas were identified inside Anderson Air Force Base.  The 2009 PA listed only Naval Base Guam (NBG) Main Base, portions of the Naval Ordinance Annex, 7 training areas within AAFB, and 5 training areas in Anderson South. Maps and descriptions of possible training activities were included in Appendix A of the 2020 PA, but the maps did not include a listing of known historic sites in and around the surrounding 27 proposed training areas.

In addition, the 2020 PA requires that the agreement be signed first, before JRM provides (GIS) documentation of sites identified as eligible for listing on the National Register of Historic Properties (NRHP) and copies of all archeological survey reports available to DoD covering the eligible sites. (See Part A of Stipulation VII in the draft PA).  JRM has six months after the execution of the agreement to provide such information.  This survey information and documentation of historic sites should be provided upfront before the government of Guam agrees to any proposed training sites.  If the agreement is signed before it has complete information regarding its historic sites, it allows for “no further review or consultations under this PA” in all 27 proposed training areas and ultimately ties the hands of the State Historic Preservation Officer and the community from fully protecting our historic sites. 

I recognize some of the enhancements in this draft 2020 Programmatic Agreement in comparison to the 2009 PA such as the inclusion of annual meetings and public notice for trainings.  I will insist that any annual meetings be open to the public as I have insisted these last 4 years for the 2011 Relocation Programmatic Agreement annual meetings.  

I do not support a Programmatic Agreement with no expiration date.  While the agreement technically allows for termination at any time, it is in the best interest for the people of Guam to require cumulative studies of the impacts of training and testing and insist renegotiations based on data at least every 5 years.  This is the type of information the community and I have been asking for since the negotiations for this PA started two years ago and it is irresponsible to move forward with an agreement without a true assessment of impact and safeguards.  Training and testing activities include detonations, sonar, live fire, helicopter training, and other activity.  When these are done over our villages and in our fishing grounds and habitat, or in the vicinity of ancient burial grounds and cultural sites, these have growing cumulative impacts on Guam. The draft agreement fails to acknowledge cumulative impact.  Even the 2011 Relocation PA with all its faults acknowledged massive cumulative impacts, and included required mitigation such as the Repository, a Museum, publication of research and assistance to the SHPO’s office.  

The 2009 PA required field monitoring and report submission. We have yet to see reports of impacts from training under the MIRC and MITT from 2009 to 2020, and the negotiations on the new MITT was the opportunity to ensure past obligations were met and a true mechanism to ensure compliance in the future.  The former SHPO had ensured that meetings with DoD regarding the MITT were open, and my office set up working meetings with Guam Preservation Trust, the Attorney General, senators, and others in hopes of a unified Guam approach intended to collectively strengthen the SHPO’s negotiations. In the last several months, consultations stopped being public and the SHPO and DoD came to this draft agreement and now invite public comment after the fact, putting a huge burden on the people of Guam during the holidays to voice their concerns before an agreement is signed. We expect the SHPO to consult with the people of Guam before negotiating for us. It was disappointing that an extension of the prior MIRC/MITT agreement was granted without obtaining the information that had been required of the agreements all along.

The implications and consequences of entering into a Programmatic Agreement are enormous and must be scrutinized with extreme care and deliberation. Training stretches far off the bases into our villages, fishing grounds, and cultural sites almost daily and yet we continue to be in the dark as to which cultural properties are affected and what the true impacts are on our communities. 

We have seen time and time again the removal of ancient artifacts, latte, lusong and human remains because the agreements were not explicit about preservation in place or details regarding acceptable forms of mitigation. Guam must learn from its past errors and stop losing in negotiations. We must ensure that any agreements made going forward protect Guam’s remaining historic sites and precious resources for the Chamorro people and the residents of Guam.

I plan to ask the SHPO again to conduct meetings with the community, prior to signing the agreement, where he can explain the expanded training sites, the cultural sites impacted, and what the differences are with this new agreement.

I encourage all community members to submit comments and concerns before December 16th regarding the draft 2020 Programmatic Agreement to advance our efforts to protect our cultural and historical resources.”

Residents can view the draft PATT document at https://historicguam.net/project-title-training-area-selection/, where there is also an option to submit comments. Comments can also be emailed to guamshpo@gmail.com. The public comment window closes Dec. 16.