CHC stops non-emergent surgeries

The Commonwealth Health Center has stopped performing non-emergent surgeries since Aug. 16 in the wake of a Superior Court finding that provisions of the Government Liability Act are unconstitutional.

Commonwealth Healthcare Corp. chief executive officer Esther L. Muña notified the Office of Attorney General last week that the hospital would stop performing non-emergent surgical procedures starting last Tuesday, Aug. 16, until the Superior Court finding is overturned.

Emergent care is usually defined to mean an immediate threat to a person’s life, a threat of grave disability, and active childbirth. Non-emergent care is usually everything else.

In a declaration last Thursday, Muña said she was advised by the OAG of the implications of the court’s ruling as it relates to CHCC’s physicians, including those who perform surgical procedures.

Muna said she was advised that the court’s opinion could lead to a surgeon being denied government’s substitution as defendant if sued with respect to a surgery performed in the scope of his or her job.

Under the ruling, in the event a surgeon is found liable, he or she would only be able to expect indemnification by the government if the Legislature makes an appropriation.

Associate Judge Joseph N. Camacho issued the ruling in connection with the malpractice lawsuit filed by couple Remedio Elameto and Pedro Pua against the CNMI government and doctors Gary Ramsey and Rajee Iyer.

Camacho’s order, dated Aug. 11, 2017, invalidates the substitution provisions of the Government Liability Act.

Camacho ruled that the Government Liability Act’s damages cap, substitution provision, prohibition on punitive damages, and restriction on the availability of jury trials fail constitutional examination.

Muña issued the declaration in support of the OAG’s and Ramsey’s request for the Superior Court’s to stay the case, pending their appeal of Camacho’s ruling to the CNMI Supreme Court.

Muña said that medical malpractice insurance is not available in the Commonwealth, apparently because the size of the medical community in the CNMI is “too small to create a sufficient risk pool.”

Muña met with CHCC’s surgical staff last Aug. 14 and informed them of the court’s decision and that the surgical staff indicated they were unwilling to perform surgical procedures as the risk of personal liability is too great without protection.

CHC is the only hospital and surgical facility on Saipan.

Without willing surgeons, the delivery of healthcare in the Commonwealth is and will be severely impaired, and life and limb are in danger as a result of the court’s ruling, Muña said.

Assistant attorney general Charles E. Brasington, counsel for the government, and Colin M. Thompson, counsel for Ramsey, said the Commonwealth requires action to be taken immediately to prevent the cessation of surgical procedures at CHC.

Brasington and Thompson said Ramsey requires action before Aug. 24, 2017, to prevent the burdens of litigation imposed by the denial of substitution from occurring.

Last Aug. 17, the Commonwealth filed an interlocutory appeal before the high court to secure appellate review of Camacho’s order.

Brasington and Thompson said the application of the right to privacy to medical malpractice suits is a serious and novel issue, with significant constitutional dimensions.

The lawyers said the hardships faced by defendants—the reduced access to healthcare for the CNMI people and the loss of absolute immunity by Ramsey—sharply outweigh the burden of delay that Elameto and Pua would face.

Camacho issued an order last Aug. 18 setting for Aug. 28 at 1:30pm the hearing on defendants’ request to immediately conduct a hearing on their joint motion.

Camacho said the government’s declaration states that medical malpractice insurance may be needed and the court notes this may be an interim economic hardship.

Furthermore, Camacho said, the government’s declaration states that CHC doctors will continue to perform emergency operations.

The judge said he recognizes this economic hardship and balances it with the CNMI constitutional rights of Elameto and Pua.

“It is important to not just get a quick solution, but also a correction solution and that is why the court is asking both parties to submit briefs,” Camacho said.

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

Elameto claimed that a surgical team at CHC 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.

It was in June 2014, or almost 14 years later, when the surgical clamp was discovered and removed at Guam Memorial Hospital.