Study: More Cancer Suits May Cost New Mexico Millions

New Mexico 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, according to a new study.

The Albuquerque Journal reported that state General Services Department Secretary Ed Burckle said the potential payouts would be in addition to about $45 million in settlements the state has paid to 118 families since 1998.

University of New Mexico 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.

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 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 to comment.

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.