Constitutionality of statute denying meaningful recovery of medical malpractice questioned

The CNMI Government Liability Act is unconstitutional as it denies any meaningful recovery to victims of medical malpractice committed at the hands of Commonwealth Healthcare Corp. employees, according to a couple who filed a medical malpractice lawsuit.

Remedio Elameto and her common-law husband, Pedro Pua, through counsel, asserted that the Government Liability Act impermissibly discriminates against victims of medical malpractice who have been seriously injured, violating their rights to due process and equal protection of the laws by effectively blocking them from fully recovering for their injuries.

Attorney Claire Kelleher-Smith, counsel for Elameto and Pua, questioned the constitutionality of the Government Liability Act in support of their objection to the CNMI government’s request to dismiss their claims against Dr. Gary Ramsey.

Kelleher-Smith said plaintiffs Elameto and Pua seek not only to recover for their injuries, but also to strike the unconstitutional statute that has been applied for bar recovery for victims of serious CHC medical malpractice in the CNMI.

Kelleher-Smith said the Commonwealth’s health care system—one that allows doctors who have been disciplined in other jurisdictions like Ramsey to practice at CHC, and that effectively prevents those seriously injured by CHC medical malpractice from recovering for those injuries—is a disgrace.

“The broken system is buttressed by an unconstitutional statutory scheme,” the lawyer said.

Fortunately, Kelleher-Smith pointed out, the Superior Court has the power to strike these statutes down, to protect the people of the CNMI.

Elameto claimed that a surgical team at CHC allegedly left a 15-centimeter long surgical clamp in her abdomen during a surgery to address her irregular periods and ovarian cysts at CHC on Saipan in August 2000.

Elameto disclosed that it was in June 2014 or almost 14 years later when the surgical clamp was discovered and removed at Guam Memorial Hospital.

Following the CHC surgery, Elameto claimed to have experienced irregular periods, pain, fatigue, sleep disruption, interference with her activities of daily living, and reduced interest and ability to enjoy activities she had previously engaged in.

Elameto and Pua are suing the CNMI government and two former CHC doctors Rajee Iyer and Ramsey for medical malpractice, bad faith, and emotional distress and loss of consortium.

Elameto and Pua asked the court to hold the defendants liable to pay them damages, court costs, and attorney’s fees. They demanded a jury trial.

The CNMI government, through assistant attorney general David Lochabay, then moved to dismiss the lawsuit.

Lochabay argued, among other things, that according to the Commonwealth statute of limitations for medical malpractice, the following actions shall be commenced only within two years after the cause of action accrues—“actions for malpractice, error, or mistake against physicians, surgeons, dentists, medical or dental practitioners, and medical or dental assistants.”

Lochabay said one of the exceptions is for cases in which an allegedly injured plaintiff is unaware that he/she has been injured until after the limitation period has expired.

Lochabay said for Elameto to have endured symptoms for 14 years without seeking readily available medical help is not reasonable diligence.

In plaintiffs opening brief in support of objection to the motion to dismiss filed on Friday, Kelleher-Smith said Ramsey should be allowed to participate in this lawsuit until the constitutionality of the Government Liability Act is resolved, given that Ramsey will be the one that they seek to hold liable once the Act is declared unconstitutional.

Kelleher-Smith said if Ramsey were to be dismissed from the case now, and then brought back in later, much of the case would be litigated twice.

The lawyer said when the CNMI Legislature enacted the Commonwealth Employees’ Liability Reform and Tort Compensation Act of 2006, the Legislature explained that the requirement that any person injured by Commonwealth employees notify the Attorney General before filing a lawsuit was to save money on unnecessary litigation, and to protect the interests of those harmed by government employees—allowing them “greater net recoveries.”

In practice, however, Kelleher-Smith said, instead of working to establish a prompt and just resolution, the government attorneys deny or fail to respond to claims, effectively serving as insurance defense attorneys.

She said in this case, instead of acting swiftly to compensate a CNMI citizen who was injured at the hands of government employees, the Office of the Attorney General argues that Elameto cannot be compensated for her injury because she did not discover the clamp soon enough.

The government’s argument, Kelleher-Smith said, is not based on an established principle of CNMI law, and it goes directly against the established common-law.

Kelleher-Smith said given that it is well known that the government does not pay judgments against it, the only way a victim will be able to obtain an attorney is if the attorney is willing to do the work without payment for years, if ever.

“In sum, the denial of a claim acts as a very real barrier to pursuing recovery for medical malpractice injuries,” she said.

Kelleher-Smith said at the very beginning of the case, the medical malpractice victim faces another discriminatory effect of the Act, the substitution of the government for the medical professional as a party to the case.

Kelleher-Smith said once the individual or individuals who have committed the medical malpractice are removed from the suit, these individuals are insulated from any personal liability, including punitive damages, and bear no financial consequences of their sometimes repeated and recklessly indifferent, harmful acts.

“This creates an environment in the CNMI where repeated, gross negligence of medical professionals is allowed to continue, with only the victims of the medical malpractice bearing the costs of such injurious behavior,” she said.

The lawyer cited the case of Ramsey, who has previously been sued for medical malpractice in the CNMI.

She said Ramsey has also been disciplined by the Medical Board of California after being charged with “gross negligence, repeated negligence, and incompetence.”

Yet, Kelleher-Smith pointed out, Ramsey continued to practice medicine at CHC for years.

“The Act removes the ability of victims of CHC medical malpractice to seek recovery from the individuals who have harmed them, and instead forces them into the bureaucratic nightmare of attempting to obtain compensation from a government that refuses to pay judgments,” she said.

Kelleher-Smith said one way to ensure full compensation for victims of medical malpractice would be for the government to purchase medical malpractice insurance for its physicians, surgeons, nurses, and other medical professionals.

However, she noted, the government has not obtained medical malpractice insurance, but has instead chosen to place the full cost of medical malpractice on those who are harmed by it.

Kelleher-Smith said taken as a whole, the Government Liability Act completely denies recovery for medical malpractice of CHC employees.