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Old leukemia suit will get a new hearing

Copyright © 2019 Albuquerque Journal

Shaun Michael Chavez died more than 36 years ago after being treated for leukemia in a University of New Mexico Hospital pediatric oncology program that is alleged to have delivered substandard, outdated treatment to child cancer patients between 1977 and 1997.

Nearly 20 years ago, UNM admitted that nationally recognized treatment protocols weren’t followed and began to settle out of court more than 90 claims alleging negligence and malpractice. So far, more than $51 million has been paid to affected families and survivors. None have gone to trial.

Meanwhile, a related proposed class action lawsuit filed in 2001 on behalf of Chavez’s mother and others in similar situations has plodded along with little progress. But the case found new life a year ago after a ruling by the state Court of Appeals.

And come Monday, according to state court records, state District Judge Carl Butkus of Albuquerque is scheduled to begin listening to evidence and arguments as to whether the case should be certified as a class action, potentially opening the door to additional payments to those who lost children or leukemia survivors themselves who were harmed and have not yet collected a dime.

The lawsuit filed by Maria Cummings, Shaun’s mother, faces a major hurdle as experts, doctors and others are expected to testify about what happened to children in the UNM pediatric cancer program and whether the claims are appropriate for a class action. If the case is certified as a class action, a trial on the merits is set for next year.

The case is focused on only those children treated for acute lymphoblastic leukemia who received treatment that wasn’t consistent with accepted protocols. Cummings’ son died at the age of 5 in 1983, after being treated at UNM since he was diagnosed with acute lymphoblastic leukemia at the age of 18 months.

A Journal investigative series published in 2000 found 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.

Lawsuits in the past have alleged that patients and their parents were told they were receiving “state of the art” treatment from then-chief of the UNM pediatric oncology clinic, Dr. Marilyn Duncan, but weren’t provided nationally recognized up to date protocols. Duncan was forced out in 1998, retired, and ultimately surrendered her license to practice medicine. She defended her treatment choices and denied wrongdoing.

While UNM officials agreed to the payouts for individual claims two decades ago, their attorneys have consistently pushed back against the proposed class action lawsuit, in which at least 100 potential claimants could be notified of their rights to join the case.

UNM in recent months has enlisted a Los Angeles law firm to help in its defense. UNM has contended that the individual unique factors of each child’s case make a class action lawsuit impractical.

But plaintiffs’ attorneys, who include Joe Goldberg and Jacob Vigil of Albuquerque, contend in court records that common systemic threads make their case “well suited” for a class action.

The plaintiffs accuse UNM of institutional failures, including lack of oversight of Duncan’s program. UNM is alleged to have failed to effectively utilized a tumor board to review tumors or implement an institutional review board to review the treatment protocols. There was no systematic review of patient outcomes that could have detected and prevented the failure to provide the proper treatment over an extended period of time, the lawsuit alleges.

“These institutional failures to implement safety monitoring,” plaintiffs allege, “caused all or nearly all of the proposed class members to lose their chance for a better medical outcome.”

The case was resurrected with the ruling by the state Court of Appeals Dec. 28, 2018, which reversed a 2016 order by state District Judge Alan Malott. Malott dismissed Cummings’ claims on the grounds that she didn’t give UNM adequate notice she might sue.

But the appeals court found Cummings did meet the legal notification requirements, and with Malott’s retirement in 2018, Butkus inherited the case.

Cummings didn’t discover the facts behind her son’s death until 18 years later, in 2001, when she began to look into a possible wrongful death claim and received her son’s full medical records, court records allege.

Cummings contends that at no time during her son’s treatment or after his death was she informed by UNM that it failed to follow “national recognized protocols” even though UNM officials did notify other families in 1998.

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