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Cancer Suit May Cost State Millions

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Years ago, when families first learned their child may have not received the recommended therapies to fight pediatric leukemia at the University of New Mexico hospital, the legal settlements were sometimes minimal.

One family, whose son received the allegedly substandard treatment but ultimately died, settled its claim in exchange for a new computer to help another son with his school work.

That has changed.

A new actuarial study has found that the state may have to pay as much as $120 million for an estimated 101 new medical malpractice claims that could be part of a potential class action lawsuit.

That’s in addition to about $45 million in settlements the state has paid to 118 families since 1998, according to state General Services Department Secretary Ed Burckle.

UNM hospital officials first disclosed in 1998 that children appeared not to have been given the newest drug therapies for acute lymphoblastic leukemia from 1989 to October 1996.

A copy of the state-commissioned actuarial study, obtained by the Journal, found the state’s previous actuarial studies allotted only $19.6 million for future settlements of pediatric oncology cases.

But the pending class action lawsuit has changed the state’s potential liability, the study stated.

“After discussion with the State, the State determined an unfavorable outcome is reasonably possible,” stated the study by AON Risk Solutions.

Because the university is a state institution and because the state is self-insured, taxpayers are footing the bill for the litigation, which is now 11 years old.

Estimate may change

Burckle said this week the new projections weren’t a surprise given the payouts of the past.

But he cautioned that the $120 million estimate was just that, and could change as the case continues.

“That’s our maximum exposure (projected) and we certainly don’t expect to pay that.” The estimate was based on the state’s $1.05 million cap per tort claim.

Burckle said his agency isn’t seeking any additional funds from the state Legislature in next year’s budget to help pay for the possible losses.

“We’re looking at how much we need to set aside,” he added.

A hearing on whether there should be a class certification is still about a year away in state district court in Albuquerque.

Lawsuits against UNM and child cancer physician Dr. Marilyn Duncan began to mount after UNM announced in 1998 that about 110 children treated for acute lymphoblastic leukemia from 1989 to 1996 didn’t receive recommended care.

Duncan, who was chief of the UNM pediatric oncology clinic, has contended the treatments she gave to children were medically appropriate and effective. She was forced to leave UNM in 1998 and retired. She later surrendered her license to practice medicine in New Mexico. Her attorney, Al Park, declined comment on Friday.

None of the claims or lawsuits filed against UNM and Duncan has gone to trial.

But a potential class action lawsuit filed in 2001 by Albuquerque attorney Jacob Vigil on behalf of two parents whose children died is still pending.

That lawsuit contends the patients and their families share some common issues, such as not being adequately informed by UNM about the treatments they were receiving and about the risks of treatments proposed. Patients and their families were also dissuaded from seeking second opinions, the lawsuit alleges.

Patients were told they were receiving “state of the art” treatment from Duncan, but were not provided the recognized national treatments that were based upon emerging scientific and clinical data, the lawsuit alleges.

A Journal investigative series published in the fall of 2000 revealed that, nationally, about three out of four children treated for leukemia were still alive after five years. At UNM, that number was two out of four.

Those who lived, the lawsuit states, were also harmed, and some went blind, were left quadriplegic, or now have other disabilities.

Duncan has maintained that she used the same drugs as newer therapies. But instead of using the newer, more intense drug therapies for pediatric leukemia, physicians at UNM hospital continued to use 1970s-era treatments, with some modifications, until 1996.

Unique factors

UNM, in court documents, is arguing against a class action lawsuit. The individual factors of each case, including the medical care, are unique to each patient and therefore the potential claimants don’t have enough in common to merit a class, UNM lawyers maintain.

In recent years, a special master appointed in the case has been compiling a list of all children diagnosed with and/or treated for ALL or acute myeloid leukemia by Duncan between Jan. 1, 1982, and Dec. 31, 1996.

The special master, Albuquerque lawyer Charles Peifer, was tasked in 2003 with contacting the patients or their representatives with a letter. He enclosed prepaid postcards that recipients could return to indicate an interest in participating in a lawsuit related to care by Duncan.

Of 277 patients identified as being potentially in the class, 101 patients or parents or both returned the postcards, according to Peifer’s final report in November 2010.

Peifer was then asked by the court to collect medical records from UNM for those 101 potential class members. But Peifer reported in December 2011 that he had been informed by UNM that not all the records could be located.

Peifer said in his final report that UNM officials informed him that “many of them (the pertinent records) may have been sent to storage” and were destroyed in a fire. Only 72 records have been produced out of the 101 sought, court records show.

The Health Sciences Center determined a June 2010 fire at an Albuquerque warehouse destroyed 90 percent of patient medical records created prior to 2005. The records were either lost to the fire or to water damage from firefighting, according to the university publication, UNM Today.

Vigil on Friday declined to comment, but said the court “may still be looking for families impacted by these circumstances.”
— This article appeared on page A1 of the Albuquerque Journal

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