IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

1
Opinion Number : ___________ 2
Filing Date : December 28 , 2018 3

No. A

- 1

- CA

- 35800 4
MARIA CUMMINGS, Individually 5 and as Personal Representative of 6 the ESTATE OF SHAUN MICHAEL 7 CHAVEZ; JANA VALLEJOS, Individually 8

a nd as Personal Representative of the 9 ESTATE OF DONOVAN VALLEJOS; and 10 LEON SALAZAR, Individually, on behalf 11

o f themselves and all others similarly 12 situated , 13

Plaintiffs

- Appellants
, 14

v

. 15

BOARD OF REGENTS OF THE 16 UNIVERSITY OF NEW MEXICO, a 17 body corporate of the State of New Mexico, 18 for itself and its public operations, including 19 UNIVERSITY OF NEW MEXICO HEALTH 20 SCIENCES CENTER, and its components, THE 21 UNIVERSITY OF NEW MEXICO HOSPITAL, 22 and UNIVERSITY OF NEW MEXICO 23 SCHOOL OF MEDICINE , 24

Defendant s

- Appellees

. 25

APPEAL FRO M THE DISTRICT COURT OF BERNALILLO COUNTY 26 Alan M. Malott , District Judge 27
Vigil Law Firm, P.A. 28 Jacob G. Vigil 29 Albuquerque , NM 30Freedman Boyd Hollander Goldberg Urias & Ward, P.A.

1 Joseph Goldberg 2 Frank T. Davis 3 Albuquerque , NM 4
for Appellants 5
Rodey, Dickason, Sloan, Akin & Robb, P.A. 6 Edward Ricco 7 Leslie McCarthy Apodaca 8 Andrew G. Schultz 9 Nelson Franse 10 Albuquerque, NM 11

Walz & Associates 12 Jerry Walz 13 Albuquerque, NM 14
for Appellees 15OPINION

1

VIGIL , Judge. 2

{1 } Plaintiffs, Maria Cummings, individually and as personal representative of 3

the estate of her son Shaun Michael Chavez
, brought a class action complaint for 4
medical and other negligence against Defendants (UNMH) resulting from 5
treatment provided to pediatric cancer patients at UNMH. Plaintiffs appeal from an 6
order of the district court dismissing their claims on grounds that UNMH did not 7

r eceive notice of Plaintiffs’ claims as required by the Tort Claims Act (TCA), 8

NMSA 1978, Section 41

- 4

- 16 (197 7 ). We conclude that Plaintiffs provided 9
UNMH with written notice of their claims in compliance with the TCA and 10

reverse. Because we reverse on thi s basis, we do not address Plaintiffs’ remaining 11

arguments. 12

BACKGROUND 13

I. The UNMH Investigation of I ts Pediatric Oncology Program 14

{2 } In 1987, after a review of UNMH’s pediatric cancer program conducted by 15
physicians from the Dana

- Farber Cancer Institute and Harvard Medical School, 16

UNMH received a letter stating that UNMH was not employing standard protocols 17
in treating its pediatric cancer patients and “[s]trongly encourage[d] that all 18
children with cancer be treated on protocols if at all possible.” On March 3, 1997, 19
Dr. Jami Frost, a physician in the pediatric cancer program at UNMH, wrote a 202

letter to the Chair of the Department of Pediatrics, Dr. John Johnson, expressing 1
concern about UNMH’s treatment of pediatric cancer patients

. The letter states: 2

Dr . Winter and I have identified several of our patients who are 3 presently receiving non

- standard treatment for their high risk ALL. 4 This treatment, known as LSA2L2, was standard therapy for children 5 in the 1970s. Since that time, several research trials hav e proven that 6 this treatment is not as effective in providing long

- term disease

- free 7 survival for children with high risk leukemia. . . . It appears that 8 children treated at UNM Pediatric Oncology Program have been 9 treated on this same protocol for many ye ars, without any changes 10 made in regard to availability of more effective therapy. 11
I have contacted two nationally recognized experts in the treatment of 12 childhood leukemia. . . . Both of these consultants agree that this 13 treatment is substandard. Both agreed that it is not medically ethical to 14 continue these patients on this protocol[.] 15

{3 } On May 13, 1997, Dr. Frost followed up with a memorandum addressed to 16
Dr. Johnson and other UNMH administrators, including the Dean of the University 17

of New Mexico Medical School, Paul Roth, discussing the findings of her 18
investigation into the treatment of pediatric cancer patients at UNMH between 19
approximately 1980

- 1997

. Dr. Frost’s memorandum indicated that the survival rate 20
for these patients was “well b elow publ ished national rates.” Dr. Frost’s 21
memorandum was accompanied by a list of 217 pediatric cancer patients whose 22
treatment was reviewed and who were currently receiving treatment, with an 23
acknowledgment that the list may not be exhaustive of all pediatric ca ncer patients 24

treated at UNMH between 1980 and 1997

. Shaun is not on the list. 253

{4 } In response to Dr. Frost’s letter and memorandum, UNMH began an internal 1
investigation into the treatment of pediatric cancer patients by Dr. Marilyn Duncan, 2

M.D. for acute lymphoblastic leukemia (ALL)

. On April 9, 1998, UNMH notified 3

at least two of its patient health insurance carriers that Dr. Duncan had been placed 4
on extended leave and was no longer seeing patients while UNMH conducted an 5
investigation into her treatment of pediatric cancer patients, which “apparently was 6
not a treatment recommended by national pediatric oncology clinical trials 7
groups.” UNMH emphasized that “we are sending you this notice, because you 8
need to be aware of [Dr. Duncan’s] status in the even t that [you] receive[] calls 9
regarding her.

. . . [UNMH] is presently conducting a comprehensive investigation 10
of this matter and is attempting to determine its implications for both our patients 11

and our institution.” 12

{5 } Dr. Cristina Beato, the Assistant or Associate Dean of UNMH, stated that as 13
part of UNMH’s investigation, she “instructed employees of UNMH to call certain 14
patients treated for ALL by Dr. Duncan, as well as families of patients so treated, 15
and inform them that they or their children may n ot have received the 16

recommended treatment for their ALL.” Ms. Cummings was not contacted

. 17

{6 } In making these calls, Dr. Beato instructed the callers to “complete a 18
‘telephone work sheet’ ” or script

. These scripts are marked “ATTORNEY

19

CLIENT PRIVILEGED[ .]” One script dated March 29, 1998, titled “Child has 204

died script [,] ” prompts the caller to say “[w]e are contacting families of children 1
treated for leukemia here, because it now appears that at least some of the children 2

did not receive all of the treat ment that was recommended at the time the children 3

were be ing seen.” The script includes “possible appropriate answers” to patient s ’ 4
families concerning the physician who treated their child, which are limited to “I’m 5
sorry I don’t have any first

- hand knowledge about that” and “I’m not in 6
administration and I just don’t have any first

- hand information about that.” The 7
script also conta ins a section titled “WHAT NOT TO TALK ABOUT[.]” The 8
points under this heading direct: 9

1. Do not volunteer anything about who was prescribing or 10 supervising the treatment. 11

2. Don’t get into the specifics of which protocols were or were not 12 followed. 13

3. Don’t make any statements about what effect the problems may 14 or may not have caused in the treatment of children

— there are 15 too many variables of treatment to even attempt this fairly at 16 this point. 17

4. Don’t say anything about how the problem was uncov ered

— 18 you have no first

- hand information about that, and that the matter is 19 under internal investigation and [is ] the subject of a personnel 20 action. 21

{7 } Similarly, another script titled “Script 2b

– Child who was in remission, but 22
has suffered a relapse and is currently in treatment” states that “[t]he physician 23
who made the decisions on how to treat pediatric oncology patients at UNM for 245

many years and who was responsible for selecting the treatment to be provided to 1
your child, is now on extended leave and is no longer seeing patients. However, we 2
have learned that this physician did not select treatment for your child that was the 3
treatment recommended at that time by a national clinical trials group supported by 4

the National Cancer Institute [called t he Pediatric Oncology Group (POG)]. ” The 5
script goes on to state: 6
UNM is in the process of investigating why your child and 7 certain others with ALL did not receive the treatment recommended 8 by POG. In August 1996, two new pediatric oncologists . . . joine d our 9 staff. As they became more familiar with the treatments that had been 10 provided in the past, they, along with nurses, pharmacists and social 11 workers of the pediatric oncology team, began to raise concerns about 12 therapy choices for children with ALL, w hich led us to reexamine the 13 treatment given to your child. 14
Although the physician who chose the treatment for your child 15 did not select the POG

- recommended treatment, even though that 16 physician was a member of POG and very knowledgeable about its 17 recommended treatment protocols, the physician apparently believed 18 the treatment being prescribed for your child would be equally 19 effective. We do not know if that treatment was equally effective for 20 your child. 21

II. The Litigation Against UNMH 22

{8 } On Febr uary 27, 2001, the estate of Steven Lawrence Lovato filed a class 23

action complaint against UNMH, which we refer to as the Lovato class action, 24
grounded on the alleged negligence of Dr. Duncan in her evaluation, care, and 25
treatment of pediatric cancer patie nts at UNM H

. On June 1, 2001, a second class 26

action complaint was filed by the estate of Christopher Joseph Sedillo against 276

UNMH, which we refer to as the Sedillo class action

. The Sedillo class action was 1
grounded on the same alleged negligence of Dr. Dun can. 2

{9 } On December 3, 2001, the Lovato class action plaintiffs filed a motion to 3
allow Plaintiffs to be joined as plaintiffs and additional class representatives

. The 4
moving papers assert that the named plaintiff in the Lovato class action and Shaun 5

wer e both pediatric leukemia patients of Dr. Duncan and members of the putative 6

class

. The motion was granted. For reasons not pertinent to the appeal, the Lovato 7
plaintiffs were later dismissed from the Lovato class action, and the caption was 8

amended to ref

lect that Plaintiffs were henceforth the plaintiffs in the Lovato class 9

action

. The operative complaint in this appeal is the third amended Lovato class 10
action complaint in which Plaintiffs are named as plaintiffs and class 11
representatives. 12

{1 0 } UNMH subsequently filed a motion to dismiss Plaintiffs ’ complaint
, 13
alleging that Plaintiffs failed to provide notice of their claims as required by the 14

TCA

. After Plaintiffs responded, the district court granted the motion to dismiss on 15

the basis that Plaintiff s are “unable to establish that UNM[H] was ever given 16
timely notice by Plaintiff Cummin g s, on her own behalf or on behalf of Shaun 17
Cummings, that there was a likelihood of litigation stemming from the pediatric 18
oncology facility’s conduct.” Plaintiffs file d a motion to reconsider, which the 19

district court denied

. In denying the motion to reconsider, the district court 207

explained its reasoning was that “regardless of when the time period for purposes 1

of [TCA ] notice began to run,” Plaintiffs “failed to establ ish that UNM [H] was 2
ever provided appropriate notice.” {11 } Initially, we observe that the district court 3
used an incorrect standard in granting UNMH’s motion to dismiss . The burden was 4
not on Plaintiffs to prove proper notice un d er the TCA

— it was UNMH’s b u rden to 5
prove inadequate notice. Dutton v. McKinley Cty. Bd. o f Comm’rs , 1991

- NMCA

6
130, ¶ 7, 113 N.M. 51, 822 P.2d 1134 (“[U]nder the [TCA] defendants have the 7
burden of proving that the notice requirement was not met.”). Plaintiff s appeal. 8

III. Facts Relating to Notice 9

{12 } Shaun was born on January 1, 1978

. He was diagnosed with ALL when he 10

was eighteen months old, and was treated at UNMH by Dr. Duncan

. In 1980, 11
Shaun moved with his family to Cleveland, Ohio for about six months while 12

Shaun’s ALL was in remission, and then returned to New Mexico, where he 13
relapsed

. Shaun continued treatment at UNMH , where he was placed on a LSA2L2 14
chemotherapy regimen in December 1981

. Shaun passed away on September 29, 15
1983, from complications of ALL. 16

{1 3 } In early Ja nuary 2001, Ms. Cummin g s retained counsel to represent her in a 17
potential case against UNMH relating to Shaun’s care and treatment

. When she 18

met with counsel, Ms. Cummin g s did not know what treatment protocols Shaun 19

had received at UNMH

. At no time, while Shaun was being treated at UNMH, or 208

after he passed away, did UNMH notify Ms. Cummin g s that it had not followed 1
nationally recognized, proper treatment protocols when treating Shaun for ALL. 2

{1 4 } On February 22, 2001, counsel requested a complete copy of Shawn’s 3

medical records from UNMH

. When the medical records were produced, they 4

revealed that Shaun was treated with a LSA2L2 protocol which, Ms. Cummin g s 5
declared in an affidavit, “was the subject of a class action case brought against 6
UNMH by the Sedillo family,” and “was the first time I learned that Shaun did not 7

receive the proper ALL treatment at UNMH.” 8

{1 5 } Shortly after receiving Shaun’s medical records, Ms. Cummin g s signed an 9
affidavit under the caption of the Sedillo class action on July 24, 2001, which was 10

filed in the Lovato class action on July 26, 2001

. The affidavit was filed in support 11

of a motion to consolidate the Sedillo class action into the Lovato class action

. W e 12
refer to this affidavit as the “notice affidavit” which we discuss in grea ter detail 13

below. The motion to consolidate was denied, but has no bearing on our analysis. 14

DISCUSSION 15

{1 6 } To maintain a claim of damages against a governmental agency, the TCA 16
requires that the agency have notice of the claim. See Section 41

- 4

- 16. Among the 17
ways in which the notice requirement may be satisfied is by “written notice” that is 18
presented “to the risk management division for claims against the state” which 19
stated “the time, place and circumstances of the loss or injury.” Whether the 209

dis trict court properly dismissed Plaintiffs’ claims for failing to comply with the 1
TCA’s notice requirement presents an issue of law, which we review de novo. See 2

Herald v. Bd. of Regents of Univ. of N.M. , 2015

- NMCA

- 104, ¶¶ 21, 48

- 51, 357 3

P.3d 438 (applying de novo review to order dismissing TCA claims for failing to 4
comply with TCA notice requirement); S mith v. State ex rel. N.M. Dep’t of Parks 5

& Recreation , 1987

- NMCA

- 111, ¶ 15, 106 N.M. 368
, 743 P.2d 124 (“[W]hether 6
written notice is sufficient is a questio n for the court.”). We discuss whether 7
UNMH received written notice as required by the TCA, then address whether that 8
notice was timely. 9

IV

. Sufficiency of the Written Notice 10

{1 7 } In the notice affidavit
, Ms. Cummin g s states : Shaun was diagnosed with 11

ALL w hen he was o ne and one

- half years old; he was diagnosed and treated at 12
UNMH on the LSA2L2 regimen; it was Dr. Duncan who treated him; and Shaun 13
died on September 29, 1983

. Ms. Cummin g s further state s in the notice affidavit 14

that she and Shaun’s estate are members of the Lovato and Sedillo class actions, 15
“and as such, have an interest and are parties to the lawsuits.” 16

{1 8 } When the notice affidavit was filed in July 2001, the pending Lovato and 17

Sedillo class action complaints included allegations that Dr. Duncan was negligent 18
in her evaluation, consultation, care, and treatment of children suffering from 19
cancer from the time she commenced working at UNMH until she stopped 2010

practicing at UNMH; that Dr. Dun can’s negligence resulted in the children 1
suffering injuries and death as well as damages to the parents of the children; that 2
UNMH was vicariously liable for Dr. Duncan’s negligence, as well as liable for its 3
own negligence

. Ms. Cummin g s ind ividually, and as representative of Shaun’s 4

estate , clearly fall s within the class described in the Lovato class action complaint 5
which is described as including “parents or other affected family members of a 6
Duncan/UNMH patient” as well as: 7
Any person who was seen by o r whose medical care involved Dr. 8 Marilyn Duncan for the purpose of evaluation, consultation, treatment 9 and/or care for a medical condition involving any form of childhood 10 cancer from the first year she practiced medic ine, or was employed 11 and/or had privil eges to practice medicine at UNMH as a physician 12 specializing in the evaluation, consultation, care and treatment of 13 children suffering from cancer until the time she ceased to practice 14 medicine at UNMH. 15

Shaun’s estate is also included within the class described in the Sedillo class action 16
as including: 17
All patients diagnosed with ALL or AML [acute myleoblastic 18 leukemia] who Marilyn Duncan/UNMHSC actually treated with 19 chemotherapy for purposes of notice only. 20

{1 9 } Counsel for UNMH
, whi ch Plaintiffs describe as “UNM’s (and its risk 21
management’s) litigation attorney
, ” both accepted service of the Lovato class 22
action complaint and was served with the notice affidavit in the Lovato class 23

action

. 2411

{20 } The Lovato class action complaint, filed on February 27, 2001
, clearly 1
provided UNMH with notice of claims against it arising from allegations of fact 2
that Dr. Duncan was negligent in evaluating, consulting, care, and treating all of 3
her pediatric cancer patients during the entire time she was e mployed by UNMH, 4
and that the survival rate of pediatric cancer patients of Dr. Duncan between 1981 5
and 1983 is well below published national rates

. The Lovato class action complaint 6
also gave UNMH notice of claims against it for its own alleged negligence

. No 7
allegations h ave ever been made that UNMH was unable to investigate the claims 8
made in the original Lovato class action complaint, and in fact, the record 9
demonstrates that UNMH conducted a thorough investigation before the Lovato 10
class action complai nt was filed and concluded that Dr. Duncan’s treatment of her 11
pediatric cancer patients “apparently was not a treatment recommended by national 12
pediatric oncology clinical trial groups.” These facts demonstrate that UNMH was 13
aware of the time, place, and c ircumstances of Dr. Duncan’s and its own alleged 14
negligence, together with the fact that it was in fact sued for the alleged 15
negligence. 16

{21 } The purpose of the TCA notice requirement “is to ensure that the agency 17
allegedly at fault is notified that it may be subject to a lawsuit” and to “reasonably 18
alert the agency to the necessity of investigating the merits of the potential claim 19
against it.” Herald , 2 015

- NMCA

- 104, ¶ 50 (alteration, internal quotation marks, 2012

and citations omitted) . The notice affidavit g ave UNMH notice that Plaintiffs 1
actually intend ed to make claims against UNMH for their losses and injuries 2
allegedly caused by the negligence alleged in the Lovato and Sedillo class action 3
complaints. As Plaintiffs point out, the notice affidavit identifi es Ms. Cummin g s 4
and Shaun’s estate by name; it states that Shaun was diagnosed and treated by Dr. 5
Duncan at UNMH; that Shaun died on September 29, 1983; and that Ms. 6

Cummin g s considers herself and Shaun’s estate to be members of the classes in the 7

Lovato a nd Sedillo class actions

. In addition, when the notice affidavit was filed, 8
UNMH had already conducted investigations into the alleged negligence of Dr. 9

Duncan, and notified at least two of its patient health insurance carriers of the 10
investigations. Under the circumstances, we fail to see how UNMH can seriously 11
argue that it was not given “written notice stating the time, place and 12
circumstances of the loss or injury” suffered by Ms. Cummin g s and Shaun’s estate. 13

See Section 40

- 4

- 16(A). All of the reasons for giving written notice under the TCA 14

were satis fied. 15

{ 2 2 } For the foregoing reasons, we conclude that UNMH was given written 16
notice of the time, place and circumstances of the alleged loss or injury suffered by 17

Plaintiffs as required by Section 41

- 4

- 16(A) of the TCA. We note that UNMH 18
does not argue that delivery of the notice affidavit to UNMH’s attorneys fail s to 19
satisfy the TCA under the circumstances. See Martinez v. City of Clovis , 1980

- 2013

NMCA

- 078, ¶ 18 , 95 N.M. 654, 625 P. 2d 583 (applying common rules of agency 1
to conclude that proper notice was given arising from negotiations between the 2
plaintiff’s attorneys and the agency’s insurer). Moreover, there is no material 3
distinction between giving notice through an affidavit at tached to a pleading and 4
sending a letter with the same affidavit attached. The only remaining question is 5
whether the notice was timely, and we now turn our attention to that question. 614

V. Timeliness of the Notice 1

{23 } Section 41

- 4

- 16(C) of the TCA provides that in a claim for wrongful death, 2

“the required notice may be presented by, or on behalf of, the personal 3
representative of the deceased person . . . within six months after the date of the 4
occurrence of the injury which resulted in t he death.” The notice requirement under 5
the TCA “accrues when the plaintiff knows or should know the relevant facts, 6
whether or not the plaintiff also knows that these facts are enough to establish a 7
legal cause of action” Maestas v. Zager , 2007

- NMSC

- 003, ¶¶ 20

- 21, 141 N.M. 8

154, 152 P.3d 141. 9

{24 } Under Maestas , we conclude UNMH received timely notice. T he undisputed 10
facts show that Shaun’s death on September 29, 1983, followed his receipt of a 11
LSA2L2 chemotherapy regimen

. Ms. Cummings did not discover the facts relevant 12

to her claim against UNMH until she retained counsel to investigate her potential 13
wrongful death claim against UNMH arising from the hospital’s treatment of 14
Shaun and received Shaun’s full medical records, which occurred, at the very 15

earlies t, on the same day Ms. Cummings’ counsel requested Shaun’s full medical 16
records from UNMH on February 22, 2001

. This conclusion is supported by the 17
affidavit filed by Ms. Cummings in response to UNMH’s motion to dismiss, in 18

which she stated that at no time during Shaun’s treatment did UNMH inform her 19

th at it did not follow nationally recognized standard protocols for treatment of 2015

ALL; at no time between when Shaun passed away in September, 1983 to the 1
present has UNMH notified her that it failed to follow n ationally recognized 2
protocols for ALL in treating Shaun; and that no one from UNM ever called, 3

wrote, or otherwise contacted her about Shaun’s treatment at UNMH

. Five months 4
and five days passed between February 22, 2001
, and the date on which Cummings 5

fi led the notice affidavit

— on July 26, 2001

. Therefore, by the time the six

- month 6
period for giving UNMH notice under the TCA expired on August, 22, 2001, the 7
hospital had already received notice of Plaintiffs’ claims. 8

CONCLUSION 9

{25 } The order dismissing Plaintiffs’ claims and entering judgment in favor of 10
UNMH on grounds that notice of Plaintiffs’ was not provided to UNMH as 11
required by the TCA is reversed. 12

{26 } IT IS SO ORDERED. 13

_ _____ ________________________ 14 MICHAEL E. VIGIL , Judge 15

WE CONCUR: 16

_____________________________ 17 J. MILES HANISEE , Judge 18

_____________________________ 19 JULIE J. VARGAS , Judge 20