‘A problem plaguing NMI for years’

A big problem that has been plaguing the CNMI for many years is the lack of medical malpractice insurance that covers physicians at the Commonwealth Health Center, according to attorney Claire Kelleher-Smith.

The other problem, Kelleher-Smith said, is the government’s reliance on the Government Liability Act, rather than obtaining medical malpractice insurance.

“This problem has been preventing victims of medical malpractice at CHC from obtaining meaningful recovery. That is the real problem,” said Kelleher-Smith, who is counsel for Remedio Elameto and her husband, Pedro Pua.

Elameto and Pua are suing the CNMI government and former CHC doctors Gary Ramsey and Rajee Iyer for medical malpractice.

The lack of medical malpractice insurance in the CNMI was brought up in Elameto and Pua’s non-opposition to a stay in the implementation of a portion of a Superior Court order that found provisions of the Government Liability Act to be unconstitutional, during pendency of the government’s appeal from such ruling.

In his order issued in connection with the couple’s lawsuit last Aug. 11, Associate Judge Joseph N. Camacho invalidated the substitution provisions of the Government Liability Act.

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

The ruling has prompted the Office of the Attorney General and Ramsey to ask the court to put Elameto’s case on hold while they appeal Camacho’s decision to the CNMI Supreme Court.

In support of the joint request, Commonwealth Healthcare Corp. chief executive officer Esther L. Muna recently notified the Office of the Attorney General that the hospital would cease performing non-emergent surgical procedures starting Aug. 16 until the court overturns its ruling.

Muna said the OAG had advised her that the court’s opinion could lead to a surgeon being denied government’s substitution if sued for a surgery performed in the scope of his or her employment.

Under the ruling, she said, a surgeon would only be able to expect indemnification by the government, which would require appropriation by the legislature in the event that surgeon is found liable.

Muña said medical malpractice insurance is not available in the Commonwealth 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. The surgical staff is unwilling to perform surgeries as the risk of personal liability is too great without protection under the Government Liability Act.

CHC is the only hospital and surgical facility on Saipan.

Last Friday, Kelleher-Smith noted that 14 months ago, the couple filed their objection to the substitution of Ramsey, but during those period, the government apparently took no action to prepare for a ruling in favor of the couple.

“Now, the government sounds the alarm that there is an emergency,” Kelleher-Smith said, adding that there is no emergency.

The lawyer said there is a problem in need of a solution—a real solution that benefits and protects both the patients served by CHC, and medical professionals employed by CHC.

She said the solution is not to stay pending litigation that resulted from clear medical malpractice.

Kelleher-Smith said the solution is for CHC to put in place medical malpractice insurance that can provide meaningful recoveries when accidents do happen, screen out uninsurable medical professionals from practicing at CHC, and insure it has competent doctors.

She said the Government Liability Act has served to deny victims of medical malpractice compensation for their damages, and allowed CHC to employ medical professionals with a history of negligence.

“If medical malpractice insurance were in place, victims would have their claims addressed, and hopefully there would be fewer claims because doctors who cannot be insured due to repeated acts of malpractice would not be employable at CHC,” she said.

Kelleher-Smith does not agree with the government’s statements that medical malpractice insurance is unavailable in the CNMI.

The lawyer said they believe that insurance can be obtained and that they are willing to work with the government to help find a policy for CHC.

Until that policy is in place, Kelleher-Smith said the plaintiffs will agree to a conditional stay of the implementation of the portion of Camacho’s order.

To promote the public’s interest, Kelleher-Smith suggested that the court grant a stay, and require the government to investigate the availability and cost of medical malpractice policies for the medical professionals at CHC.

She said the government should also report its progress monthly to the court and plaintiffs while the order is stayed.

“This practical outcome protects the interests of CHC employees, allows for the ongoing provision of surgical services at CHC, and yet does not ignore the reality that the system in place must change so that it also protects the rights of patients who are injured by CHC malpractice,” Kelleher-Smith said.

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

Elameto and Pua are suing the CNMI government, 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.