‘OAG’s argument on common law marriage disregards Carolinian custom’

The Office of Attorney General’s argument that common law marriage does not exist in the CNMI is incorrect and completely disregards Carolinian custom, according to attorney Claire Kelleher-Smith.

Kelleher-Smith, on behalf of Remedio Elameto and Pedro Pua, asserted that customary common law marriage is widely recognized in the CNMI.

Elameto and her common-law husband, Pua, are suing the CNMI government and two former Commonwealth Health Center doctors Rajee Iyer and Gary Ramsey for medical malpractice, bad faith, and emotional distress and loss of consortium.

Elameto and Pua asked the Superior Court to hold the defendants liable to pay them damages, court costs, and attorney’s fees.

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.

The government, through OAG, then moved to dismiss the lawsuit.

The OAG 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.”

In plaintiffs Elameto and Pua’s opposition to the motion to dismiss, Kelleher-Smith said the OAG asserts that Elameto and Pua’s relationship as husband and wife for nearly three decades deserves no recognition under CNMI law.

Kelleher-Smith said this OAG’s assertion is not only deeply offensive, it is also inaccurate.

She said as the U.S. Supreme Court recognized, “the ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society.”

The lawyer said the U.S. high court also stated that, “the history of marriage is one of both continuity and change.”

Kelleher-Smith said that in the CNMI, the history of marriage is also one of “continuity and change,” with the customs of the Chamorro and Carolinian peoples surviving the colonial administration of Spain, Germany, and Japan.

She said Elameto and Pua are both Carolinians, and that marriage under Carolinian custom requires little formality.

Kelleher-Smith said as the complaint alleges, Elameto and Pua have lived as husband and wife since 1987, and have been recognized in the CNMI community, by the CNMI, and by the Commonwealth Healthcare Corp. as common law spouses.

She cited that even the CHC medical records for the surgery at issue in this case, list Pua as Elameto’s “common law spouse.”

Kelleher-Smith noted that the CNMI Supreme Court, at least six times, has referred to common law marriages on the assumption that they exist.

She said references to common law marriage are also made in CNMI regulations.

The lawyer cited that “common law marriage” is defined in the homestead regulations.

Kelleher-Smith said because common law marriage is widely accepted in the CNMI, and is recognized by CNMI law, including statutory, judicial and customary law, common law spouses can assert a claim for loss of consortium in this jurisdiction.

Under CNMI law, she said, Pua is no less deserving of the full and uninjured society, affection, attention, and companionship of his spouse of nearly 30 years, than someone who entered a marriage through traditions rooted in English or American law.

Accordingly, the lawyer said, the government’s motion to dismiss Pua’s claim for loss of consortium must be denied.

Kelleher-Smith said Elameto and Pua presented their claim to the OAG on March 1, 2016, less than two years after the surgeons at Guam Memorial Hospital discovered the clamp left inside Elameto’s abdomen.

“It is wholly arbitrary, and unsupported by any legitimate government interest, for the CNMI government to refuse to appropriately insure against medical malpractice, to refuse to invest in quality medical care for the people of the CNMI, and to refuse to compensate victims of medical malpractice committed by government employees,” she said.

The lawyer said the statute of limitations does not bar plaintiffs’ claims.

She said the OAG first incorrectly argues for dismissal based on the affirmative defense of statute of limitations, asserting that Elameto’s medical malpractice claim, and Pua’s derivate loss of consortium claim, were not timely filed.

The lawyer said this argument is incorrect because the face of the complaint explains why this action was brought more than two years after Dr. Ramsey’s and the Commonwealth Healthcare Center’s wrongful acts.

In making these arguments and assumptions, she said, the OAG disparages Elameto, and trivializes and even mocks the injury she suffered at the hands of government employees.

The lawyer said there is no possible justification for these insults to Elameto’s dignity, and it is precisely this approach the OAG that supports Elameto’s continuing claims of bad faith.

In the CNMI, Kelleher-Smith said, there is no established rule for the accrual date of medical malpractice claim due to foreign object left in patient’s body.

She said when a foreign object is left in the body of medical patient, “the common-law rule, as generally understood and applied in the U.S., is that the action accrues when the foreign object is discovered.”

Kelleher-Smith said the plaintiffs, by filing within two years of discovering the clamp that had been left in Elameto’s body by CHC surgeons, timely brought their action.

She said the OAG’s assertion that Elameto did not act with “reasonable diligence” is a factual determination that is disputed; moreover, it is beyond dispute that the OAG’s opinion is no substitute for medical evidence.