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Cummings v. Board of Regents of University of New Mexico

Court of Appeals of New Mexico

December 28, 2018

MARIA CUMMINGS, Individually and as Personal Representative of the ESTATE OF SHAUN MICHAEL CHAVEZ; JANA VALLEJOS, Individually and as Personal Representative of the ESTATE OF DONOVAN VALLEJOS; and LEON SALAZAR, Individually, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,
v.
BOARD OF REGENTS OF THE UNIVERSITY OF NEW MEXICO, a body corporate of the State of New Mexico, for itself and its public operations, including UNIVERSITY OF NEW MEXICO HEALTH SCIENCES CENTER, and its components, THE UNIVERSITY OF NEW MEXICO HOSPITAL, and UNIVERSITY OF NEW MEXICO SCHOOL OF MEDICINE, Defendants- Appellees.

          APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Alan M. Malott, District Judge

          Vigil Law Firm, P.A. Jacob G. Vigil Albuquerque, NM Freedman Boyd Hollander Goldberg Urias & Ward, P.A. Joseph Goldberg Frank T. Davis Albuquerque, NM for Appellants

          Rodey, Dickason, Sloan, Akin & Robb, P.A. Edward Ricco Leslie McCarthy Apodaca Andrew G. Schultz Nelson Franse Albuquerque, NM Walz & Associates Jerry Walz Albuquerque, NM for Appellees

          OPINION

          MICHAEL E. VIGIL, JUDGE

         {¶1} Plaintiffs, Maria Cummings, individually and as personal representative of the estate of her son Shaun Michael Chavez, brought a class action complaint for medical and other negligence against Defendants (UNMH) resulting from treatment provided to pediatric cancer patients at UNMH. Plaintiffs appeal from an order of the district court dismissing their claims on grounds that UNMH did not receive notice of Plaintiffs' claims as required by the Tort Claims Act (TCA), NMSA 1978, Section 41-4-16 (1977). We conclude that Plaintiffs provided UNMH with written notice of their claims in compliance with the TCA and reverse. Because we reverse on this basis, we do not address Plaintiffs' remaining arguments.

         BACKGROUND

         I. The UNMH Investigation of Its Pediatric Oncology Program

         {¶2} In 1987, after a review of UNMH's pediatric cancer program conducted by physicians from the Dana-Farber Cancer Institute and Harvard Medical School, UNMH received a letter stating that UNMH was not employing standard protocols in treating its pediatric cancer patients and "[s]trongly encourage[d] that all children with cancer be treated on protocols if at all possible." On March 3, 1997, Dr. Jami Frost, a physician in the pediatric cancer program at UNMH, wrote a letter to the Chair of the Department of Pediatrics, Dr. John Johnson, expressing concern about UNMH's treatment of pediatric cancer patients. The letter states:

Dr. Winter and I have identified several of our patients who are presently receiving non-standard treatment for their high risk ALL. This treatment, known as LSA2L2, was standard therapy for children in the 1970s. Since that time, several research trials have proven that this treatment is not as effective in providing long-term disease-free survival for children with high risk leukemia.... It appears that children treated at UNM Pediatric Oncology Program have been treated on this same protocol for many years, without any changes made in regard to availability of more effective therapy.
I have contacted two nationally recognized experts in the treatment of childhood leukemia. . . . Both of these consultants agree that this treatment is substandard. Both agreed that it is not medically ethical to continue these patients on this protocol[.]

         {¶3} On May 13, 1997, Dr. Frost followed up with a memorandum addressed to Dr. Johnson and other UNMH administrators, including the Dean of the University of New Mexico Medical School, Paul Roth, discussing the findings of her investigation into the treatment of pediatric cancer patients at UNMH between approximately 1980-1997. Dr. Frost's memorandum indicated that the survival rate for these patients was "well below published national rates." Dr. Frost's memorandum was accompanied by a list of 217 pediatric cancer patients whose treatment was reviewed and who were currently receiving treatment, with an acknowledgment that the list may not be exhaustive of all pediatric cancer patients treated at UNMH between 1980 and 1997. Shaun is not on the list.

         {¶4} In response to Dr. Frost's letter and memorandum, UNMH began an internal investigation into the treatment of pediatric cancer patients by Dr. Marilyn Duncan, M.D. for acute lymphoblastic leukemia (ALL). On April 9, 1998, UNMH notified at least two of its patient health insurance carriers that Dr. Duncan had been placed on extended leave and was no longer seeing patients while UNMH conducted an investigation into her treatment of pediatric cancer patients, which "apparently was not a treatment recommended by national pediatric oncology clinical trials groups." UNMH emphasized that "we are sending you this notice, because you need to be aware of [Dr. Duncan's] status in the event that [you] receive[] calls regarding her... . [UNMH] is presently conducting a comprehensive investigation of this matter and is attempting to determine its implications for both our patients and our institution."

         {¶5} Dr. Cristina Beato, the Assistant or Associate Dean of UNMH, stated that as part of UNMH's investigation, she "instructed employees of UNMH to call certain patients treated for ALL by Dr. Duncan, as well as families of patients so treated, and inform them that they or their children may not have received the recommended treatment for their ALL." Ms. Cummings was not contacted.

         {¶6} In making these calls, Dr. Beato instructed the callers to "complete a 'telephone work sheet'" or script. These scripts are marked "ATTORNEY-CLIENT PRIVILEGED[.]" One script dated March 29, 1998, titled "Child has died script[, ]" prompts the caller to say "[w]e are contacting families of children treated for leukemia here, because it now appears that at least some of the children did not receive all of the treatment that was recommended at the time the children were being seen." The script includes "possible appropriate answers" to patients' families concerning the physician who treated their child, which are limited to "I'm sorry I don't have any first-hand knowledge about that" and "I'm not in administration and I just don't have any ...


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