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NMI high court reverses order in medical malpractice lawsuit

(Press Release) — On May 23, 2019, the local Supreme Court issued its opinion in Foster v. Commonwealth, 2019 MP 4.

Jay Foster sought the high court’s review after the trial court issued its order granting the Commonwealth’s motion to dismiss with prejudice and order denying plaintiff’s motion for reconsideration. The local Supreme Court reversed the orders, finding that a claim without a sum certain is a defective claim and requires courts to permit claimants to refile a new claim to the attorney general within 60 days pursuant to the Government Liability Act or GLA.

In 2013, Foster sued Dr. Ruben Arafiles for medical malpractice. In Foster’s complaint, he requested various damages “in the amount to be proven at trial.” Following Section 2210(a) of the GLA, the Commonwealth certified Dr. Arafiles as acting within the scope of his employment when the alleged malpractice occurred. The Commonwealth filed a notice requesting substitution of the Commonwealth for Dr. Arafiles as the party-defendant. At the same time, the Commonwealth moved to dismiss Foster’s complaint alleging he had not presented his claim for damages to the attorney general in accordance with the GLA. Subsequently, the trial court stayed the proceedings while Foster and the Commonwealth attempted mediation to come to a settlement.

Foster issued a letter to the Commonwealth with his complaint attached and completely unchanged. In the months following, the parties did not reach a settlement. The trial court subsequently issued an order dismissing with prejudice, precluding Foster from pursuing a lawsuit against the Commonwealth. In particular, the trial court claimed that Foster “had already presented [his] claim to the attorney general.” Because Foster did not specify a “sum certain,” the trial court did not have jurisdiction and Foster was barred from instituting suit against the Commonwealth. Foster moved for reconsideration claiming that because he did not present a sum certain, he failed to present a claim at all, and should therefore be given 60 days to refile his claim pursuant to the GLA. The trial court denied reconsideration, stating that Foster had “exhaust[ed] any possible recourse.”

The local Supreme Court considered the parameters of the requirements on claim presentment in the GLA. Looking at the statute’s plain language, the provisions in the context of the entire statute, and the legislative intent behind the GLA, the high court found that where a plaintiff claimant fails to indicate a sum certain, the claimant has failed to present a claim at all. In particular, the high court acknowledged that interpreting a claim without a sum certain as a claim of zero-dollars would mean that a claimant could never pursue a lawsuit against the Commonwealth. It reasoned that this could not be the intent of the Legislature which sought to provide “greater net recoveries for deserving claimants.”

As a result, the local Supreme Court reversed the trial court’s orders, remanding the case for further proceedings consistent with the opinion.

The high court’s full opinion is available at