CEO SUMMARY: In January, a former VA pathologist was sentenced to 20 years in federal prison following his conviction on charges of involuntary manslaughter and mail fraud. The facts in this case show why leaders of clinical labs and pathology groups need to be aware of individuals who are impaired on the job due to drug or alcohol abuse. Failing to act in such cases could lead to criminal or civil liability under negligent retention of an impaired employee or to medical malpractice claims, says an attorney who reviewed this case.
IT IS NOT OFTEN THAT A PATHOLOGIST WOULD BE CONVICTED of felony crimes committed while practicing medicine. Yet that happened in the case of pathologist Robert Morris Levy, who worked at a Veterans Administration Hospital in Arkansas and was sentenced in January to 20 years in federal prison and fined almost $500,000.
The federal Department of Justice (DOJ) alleged that Levy’s diagnostic errors happened while he worked under the influence of alcohol and drugs over multiple years and resulted in the deaths of at least three patients because they did not get correct or timely treatment for their conditions.
The Levy case is a reminder that every anatomic pathology group faces such risks, particularly since a lab professional who abuses drugs or alcohol can hide his or her condition while continuing to work in clinical settings. The malpractice and medical liability cases associated with Levy’s alleged misdiagnoses have not been reported publicly. But in a typical community hospital, even a single diagnostic error that was preventable but led to a patient death can become a significant news stories that can damage a laboratory or pathology group’s reputation in the community.
Facts of the Arkansas Case
“The facts in the Arkansas case show that clinical lab directors and leaders of AP groups need to be well aware of any individuals who are impaired due to abusing drugs or alcohol while working in a clinical lab or in an AP practice,” commented Danielle Holley Tangorre, a shareholder in the Health Law practice at the law firm of O’Connell and Aronowitz in Albany, N.Y.
On Jan. 22, Levy, age 54, of Fayetteville, Ark., was sentenced to 20 years in federal prison and ordered to pay $497,746 in restitution on charges related to mail fraud and involuntary manslaughter, the DOJ announced.
In the sentencing order, U.S. District Court Judge Timothy L. Brooks said Levy would serve two prison terms concurrently and then serve three years of supervised release. Levy was ordered to serve 20 years for mail fraud and eight years for involuntary manslaughter.
Levy had worked as the Chief of Pathology and Laboratory Medical Services at the Veterans Health Care System of the Ozarks in Fayetteville from 2005 until his employment was terminated in 2018, the DOJ said. In August 2019, a federal grand jury indicted Levy, and he pleaded guilty to the charges in June. (See “Pathologist’s Errors Associated with 12 Deaths at Arkansas VA,” TDR Feb. 25, 2019, and “Arkansas Pathologist Faces Three Manslaughter Charges,” TDR Sept. 3, 2019.)
Appeared to Be Intoxicated
In 2015, Levy was reportedly under the influence of alcohol while on duty reviewing cases, and in 2016, he appeared to be intoxicated while on duty, the DOJ announced. After a drug and alcohol test showed Levy’s blood alcohol content was 0.396.0 mg/dL, the Fayetteville VA suspended Levy’s privileges to practice medicine, the DOJ noted.
Following a three-month in-patient treatment program, Levy was reinstated. But his problems continued, leading the VA to terminate his employment, the DOJ said. (See sidebar, “DOJ Outlines Facts Leading to Pathologist’s Sentencing,” below.)
“For anyone working in clinical labs or in anatomic pathology, this is an important case, because, by all accounts, Levy’s superiors were aware of his problems,” Tangorre commented. “They knew because he was getting tested for drugs and alcohol abuse and he was concealing his impairment.
“That level of concealment showed that the pathologist was impaired, and that impairment led, at least in part, to the finding of manslaughter,” she added. “As employers, clinical labs and AP groups have a responsibility to other employees and to patients and physicians to be aware of impaired individuals on the job.
“One factor labs and anatomic pathologists need to consider is that any employer could be liable for failing to address an employee’s drug or alcohol abuse, particularly if that employee’s ability to perform the job is impaired,” Tangorre warned. “Under the legal theory of negligent retention, an employer can be held liable for the actions of an employee who could harm a patient.
“Using the negligent retention theory, plaintiff attorneys could bring a legal action against clinical labs and AP groups if they fail to take appropriate steps to address any situation in which a pathologist or other employee is found to be impaired on the job,” added Tangorre. “In the case of the VA pathologist, there were red flags—such as the high rate of errors—that could have been caught earlier in an audit.
“In addition, there were suspicions about how that pathologist was hiding his addiction,” she noted. “These facts are lessons for labs that such problems need to be addressed as soon as they’re uncovered.
Negligent Retention Claim
“A plaintiff attorney could bring a claim of negligent retention or medical malpractice against the whole entity,” Tangorre advised. “Such legal claims are possible, particularly when a case involves a misdiagnosis, a high error rate, or any action that raises the possibility of a failure to follow standard practices.
“As employers, clinical labs and pathology groups cannot simply bury their heads in the sand and ignore signs of drug and alcohol abuse,” she said. “Sometimes, employers turn a blind eye to issues related to job performance.
“We saw something similar in the VA pathologist’s case,” she added. “Litigants can charge that a lab or AP group has failed to supervise employees properly. Under this theory, the employer has an obligation to supervisor all employees.
“There are times when employers also fail to act on problems stemming from other employment situations, such as sexual harassment, which is not related to this case,” she noted. “But, as employers, they need to be aware of such problems, and they need to act to prevent harm to patients and to other employees.
“Sometimes, employers may think they cannot be held responsible if they are unaware of such workplace problems,” Tangorre commented. “But that thinking is incorrect. Employers have an obligation to be aware of issues workers face, and they need to have written policies about the steps they will take when such problems become known.
“Once those policies are written, labs need to apply them consistently,” she advised. “As employers, clinical laboratories and anatomic pathology groups need to act, because failing to do so can trigger concerns about discrimination or disability.
Lab’s Obligation to Report
“When your lab has an employee who has an alcohol and substance abuse problem, the lab cannot simply terminate that individual’s employment,” she noted. “The lab would need to do its due diligence, which means looking into the circumstances of the case to determine if the lab has any reporting requirements in your state. Also, other steps besides firing may be required. That can include counseling, employee monitoring, and random drug screening. There is no one-size-fits-all approach.
“Should a lab ignore a situation where there’s a likelihood of criminal action, or if anyone in the lab or group knew about it and management ignored it or turned a blind eye, there could be potential criminal liability,” she warned.
“And, depending on how you handle these problems in your lab, there is the potential for civil liability,” Tangorre said. “Or, your lab could be joined in a medical malpractice suit that could be brought against a lab professional or a pathologist. Both the individuals involved and the organization itself could face liability in civil and criminal cases.
“Keep in mind that while individuals will be named in civil and criminal cases, there is a belief among plaintiff attorneys that the organization itself has more insurance coverage for medical malpractice cases and more money to pay out in these cases,” she commented. “That’s why plaintiffs’ attorneys would try to bring a case based on the failure of the lab directors or leaders of an AP group to do the oversight that’s necessary when an employee has a drug or alcohol problem.”
Contact Danielle Holley Tangorre at 518-462-5601 or firstname.lastname@example.org.
Department of Justice Outlines Facts Leading to Pathologist Levy’s Plea Agreement and Sentencing
WHEN IT ANNOUNCED THE SENTENCING OF VETERANS ADMINISTRATION PATHOLOGIST ROBERT MORRIS LEVY IN JANUARY, the federal Department of Justice outlined the facts that led to a plea agreement in the case of involuntary manslaughter and mail fraud in the U.S. District Court in Fayetteville, Arkansas.
In 2005, the Veterans Health Care System of the Ozarks hired Levy to serve as the Chief of Pathology and Laboratory Medical Services, a position he held until the VA terminated his employment in 2018.
“In 2015, Levy was interviewed by an administrative fact-finding panel regarding reports that Levy was under the influence of alcohol while on duty,” the DOJ said. “Levy denied the allegations. In 2016, Levy appeared to be intoxicated while on duty, and a subsequent drug and alcohol test revealed Levy’s blood alcohol content was 0.396.0 mg/dL.
“As a result, the Fayetteville VA summarily suspended Levy’s privileges to practice medicine and issued Levy a written notice of removal and revocation of clinical privileges,” the DOJ noted. “Levy acknowledged that the pending proposed removal and revocation of clinical privileges was ‘due to unprofessional conduct related to high blood alcohol content while on duty,’ and in July 2016, Levy voluntarily entered a three-month in-patient treatment program, which he completed in October 2016.
“Toward the end of the treatment program, Levy executed a contract with the Mississippi Physician Health Program and the Mississippi State Board of Medical Licensure in anticipation of returning to practice medicine at the Fayetteville VA,” the DOJ added. “In the contract, Levy agreed to maintain sobriety to ensure his ability to practice medicine with reasonable skill and safety to patients.
“Levy agreed to ‘abstain completely from the use of … alcohol and other mood-altering substances’ and to submit to random urine or blood drug screens,” the department reported. “Non-compliance would potentially subject Levy to loss of his medical license and, in turn, his employment by the Fayetteville VA. Levy returned to work at the Fayetteville VA in October 2016.
“As part of the contract, Levy randomly provided urine specimens and blood samples for drug testing from November 2016 through June 2018,” the DOJ wrote. “Each blood sample and urine specimen tested was reported negative for the presence of drugs and alcohol.
“On 12 occasions beginning in June 2017 and continuing through 2018, while Levy was contractually obligated to submit to random drug and alcohol screens, Levy purchased for personal consumption 2-methyl-2-butanol (2M2B), a chemical substance that enables a person to achieve a state of intoxication but is not detectable in routine drug and alcohol testing methodology,” the DOJ noted.
“On July 2, 2017, in furtherance of the scheme to defraud, Levy caused a package containing 2M2B to be shipped in interstate commerce from a chemical supply company in Virginia to Levy’s residence in Fayetteville, the department said.
“On Feb. 4, 2014, Levy conducted a cursory and rudimentary workup of a biopsy of a tumor in the lymph node of an Air Force veteran and rendered a diagnosis of diffuse large B cell lymphoma,” the DOJ said. “The government’s evidence would show this diagnosis was incorrect and that Levy’s workup prior to finalizing the incorrect diagnosis was cursory and rudimentary. The government’s evidence also showed that Levy made a patently false entry in the veteran’s medical record by stating that another pathologist agreed with Levy’s diagnosis, when in truth and in fact, Levy well knew when he made the false entry in the veteran’s medical record that no other pathologist agreed with Levy’s diagnosis.
“The evidence also revealed that prior to Levy entering the false diagnosis, another pathologist had written to Levy, urging Levy to perform more diagnostic tests in the case due to the concern that Levy’s diagnosis of large B cell lymphoma was wrong,” the DOJ wrote.
“The veteran died on July 26, 2014, of small cell carcinoma for which the veteran received no treatment to prolong his life. The veteran was not treated for small cell carcinoma due to Levy’s grossly and criminally negligent conduct that demonstrated a wanton and reckless disregard for the veteran’s life,” the DOJ said.