Arguments begin in proposed class action suit v. UNMH
Attorneys proposing a class action lawsuit against the University of New Mexico Hospital for two decades of alleged substandard treatment of children with leukemia from 1977 to 1997 said Monday they are seeking to certify about 243 potential class members.
“Many families have been waiting over two decades for this day, which I believe is a step forward,” said Albuquerque attorney Jacob Vigil on the opening day of a hearing to determine whether the case should proceed as a class action lawsuit.
Vigil filed the lawsuit in 2001 for those who had not yet received out-of-court settlements from UNM for damages to their children from alleged outdated, less effective treatment protocols
administered by UNM’s pediatric oncology department.
“This is a tragedy for more than 200 families,” said co-counsel Joe Goldberg. “UNM applied the wrong protocols with disastrous results. The survival rate is about half the survival rate nationally.”
Nelson Franse, an attorney for UNM Hospital, argued that some children did receive the proper treatment, others refused treatment or didn’t follow treatment plans. Therefore, he said, the “cookie cutter” approach of a class action lawsuit wouldn’t work.
If state District Judge Carl Butkus certifies the class — considered a preliminary step in the case — former patients and their families would be notified they could opt out. A trial on the merits would be held next fall.
The planned five days of testimony and legal arguments this week marks a significant public airing of what led UNM to disclose to more than 80 families in 1998 that their child may have not received the recommended treatment for leukemia.
A flood of lawsuits and claims alleging medical negligence against UNM were settled without going to trial about two decades ago. The total payout was estimated at more than $50 million.
The proposed class action lawsuit focuses on the hospital’s alleged institutional negligence in failing to provide oversight and accounting of how children with leukemia were being treated. Vigil said instead of nationally recognized drug therapies, “experimental concoctions” were administered. UNM pediatric oncology chief Marilyn Duncan was ultimately suspended, retired and surrendered her medical license without admitting wrongdoing. She is not named as a defendant in the current lawsuit.
Goldberg, a former UNM law school professor who has specialized in class action lawsuits, told the judge he joined Vigil on the case six or seven years ago.
“The first question I asked him was how could this (substandard treatment of children) have gone on for 20 years? That’s institutional negligence.”
Goldberg said for those who have claims, but can’t retain attorneys to file them, a class action case may be the only way to ensure “at least some measure of justice that they otherwise have been unable to achieve.” Franse said if the class action case isn’t certified, he believed individuals could still file their own lawsuits, adding, “I don’t think they don’t have an option.”