CHCC goes to the high court

The Commonwealth Healthcare Corp. has sought to reverse a trial court decision to deny the dismissal of a malpractice lawsuit filed against it.

The corporation, through the Office of the Attorney General, has filed a notice of appeal with the Supreme Court, with the intention to reverse the decision of Superior Court Judge Joseph N. Camacho that denied a motion to dismiss a malpractice lawsuit.

“We vehemently disagree with Judge Camacho’s decision. We are taking it up on interlocutory appeal because this is not an appeal on a final decision on the merits of the case,” said corporation legal counsel Nancy Gottfried.

“What OAG did was to file a notice of appeal. The court sets a briefing schedule, then briefs come in and hearing date is set. We are hoping that the Supreme Court will give us an expedited review…put it on an accelerated schedule. We’d like them to hear the case and render a decision as soon as practicable,” Gottfried added.

Camacho’s Aug. 11, 2017, order invalidates certain provisions of the Government Liability Act because it reportedly fails constitutional examination.

In a news briefing Friday, Gottfried enumerated the aspects of the Government Liability Act that Camacho had called into question. “First, that there be no substitution, meaning CHCC is not substituted for the name of the doctor. Two, that there is no cap on damages. Currently there is a $100,000 cap on non-economic damages, $50,00 to $100,000 for the person. Third, no punitive damages. And lastly, right to a jury trial.”

Gottfried believes the appeal to the Supreme Court will shed light on the constitutionality of the Government Liability Act in the context of medical malpractice.

The Act was made applicable to CHCC and covers medical malpractice through Public Law 19-78. The Act serves as a cloak used to protect CHCC doctors from incurring personal liability from damages incurred in the practice of their profession.

CHCC CEO Esther Muña said there is no actual medical malpractice insurance for physicians at the hospital.

“The physicians that we have recruited usually ask that question when they come to work in CHCC because they know that they cannot buy medical insurance,” she said.

Saipan Tribune news files show that, in a 2008 interview with the late David Lochabay, a former CHCC litigation counsel, he had said that medical malpractice insurance from reputable U.S.-based insurance companies is not readily available in the CNMI because the islands’ risk pool is too small.

According to Muña, the reason for the lack of medical malpractice insurance in the CNMI, then as now, still holds true today. “When you calculate what we have, doctors, physician assistants, nurse practitioners then add the private providers, we only have some 50 and, that is a small number. That is why we don’t have enough risk pool for insurance companies to take in.”

“So the purpose of the Government Liability Act is to be able to cover for the doctors for indemnification of damages. Knowing that is one of the reasons why doctors come here. Any physician would like to be able to have that. If it’s not available by simply purchasing it themselves, then the Government Liability Act was the option and that is the reason why they are here,” Muña added.

Even Guam has the same issue, with the Government Claims Act covering the Guam Memorial Hospital, Muña said.

“There was a bill, maybe two years ago, to try to require medical malpractice insurance and this has come up before. When people say medical malpractice insurance is available in Guam, we ask Guam, and they say they don’t have it either,” she added.

Gottfried said that there are many challenges when operating a hospital on a remote island.

“We are the only hospital on island, geographically remote, [yet] we are held to U.S. mainland standards. We are in conformity with Centers for Medicare & Medicaid Services, but obviously there are challenges to operating a hospital on a remote island in the tropics,” she said.

“One of the differences of CHCC and mainland hospitals is that all of our doctors here are employees. They are not independent contractors.”

Gottfried said that CHCC will be in pursuit of obtaining medical malpractice insurance, commensurate with the measures that Camacho put into his decision. “We are sending letters to all of the CNMI registered insurance companies, to tell them the parameters of the decision about punitive damages, no cap, a jury trial and no substitution and asking them what conditions they would require in order for us to obtain medical malpractice insurance.”

“Those letters are going out very soon and we will give them an opportunity to respond. If they don’t respond, we will be following up with them,” she added.

Muña said that CHCC will be taking another stab at asking insurance companies. “Markets change and maybe there is really somebody out there who can accommodate us but, again, this will not be our first time to inquire about insurance and it has always been a no. This time, we don’t know if we are going to get a yes or no answer.”

“This is not unusual. This is not something that we are not doing because we don’t want to get it, it’s just not available to us,” she added.

According to Gottfried, the appeal intends to have the Supreme Court look at the issue as having a compelling state interest.

Compelling state interest is part of the hierarchy of standards that courts use to determine which is weightier, a constitutional right or principle or the government’s interest against observance of the principle.

Gottfried said, “If the appeal is successful, then the Government Liability Act will be intact and we would function accordingly under it.”

Meanwhile, Muña assures doctors and the community that CHCC always has their best interests in mind and that it stands by its principle that no doctor or patient should worry about healthcare in the CNMI.

“When we hire physicians, we want them to perform to the best of their ability. We want to make sure that they are covered, that is why we are appealing this. We need to protect our physicians and protect our patients.”

“Having some kind of protection, especially with the Government Liability Act right now, is something we rely on. We want protection for our doctors and patients. To say that the Government Liability Act is unconstitutional and not valid makes our doctors worry. We are the only hospital here, the only surgery center…. I don’t want our physicians to worry,” Muña added.