$400,000 Settlement in VA Wrongful-Death Case

Citing malpractice, daughters of deceased veteran sued a former VA pathologist, the VA, and the USA

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CEO SUMMARY: Did “the system” fail patients and physicians at one Veterans Health Administration center? The public disciplinary records of pathologist Robert Morris Levy over several decades show that any laboratory employing Levy had reason to monitor closely the accuracy of his diagnoses and his sobriety on the job. In March, the federal government agreed to settle a case filed by family members of a veteran who died as a result of Levy’s inaccurate cancer diagnosis. Might greater oversight of Levy by VA officials have prevented his diagnostic errors? 

NOW THAT A DISGRACED PATHOLOGIST IS SERVING TIME in federal prison on criminal charges related to misdiagnoses of cancer cases and other issues, his former employer has settled at least one lawsuit filed by family members of a now-deceased patient whose cancer was misdiagnosed. 

In a wrongful-death case, the federal government agreed to pay $400,000 in March to the estate of a U.S. veteran who died after the now-jailed pathologist at the Veterans Health Care System of the Ozarks failed to spot a malignant tumor, a misdiagnosis that led to the veteran’s death in 2014, court documents show. 

Settlement Agreement

Attorneys from the federal Department of Justice (DOJ), and for the executors of the estate of the deceased veteran, reached the agreement on April 15 to settle the case rather than go forward with a trial in the U.S. District Court for the Western District of Arkansas, in Fayetteville. 

The case offers lessons for any clinical laboratory or anatomic pathology group that employs or contracts with anatomic pathologists or clinical laboratory scientists who may be under the influence of drugs or alcohol, or otherwise impaired, while at work, as The Dark Report previously noted. (See sidebar “Attorney Identifies Useful Lessons to be Learned from Levy Case for Clinical, Pathology Labs,” below, and “Pathologist’s Prison Term Is a Warning for AP Groups,” TDR, March 1, 2021.) 

In January, the pathologist, Robert Morris Levy, MD, was sentenced to 20 years in federal prison and ordered to pay a fine of almost $500,000 following his conviction on charges of involuntary manslaughter and mail fraud. 

The DOJ alleged that Levy was under the influence of alcohol and drugs over multiple years, and that factor led to diagnostic errors which resulted in the deaths of at least three—and possibly as many as 15—VA patients because they did not receive correct or timely treatment for their conditions.

One of those patients was John D. Quick, a former resident of Greenwood, Ark., and a former infantry soldier who served in the U.S. military for 20 years, and who fought in the Korean and the Vietnam wars. As a veteran, Quick was treated at the Veterans Health Care System of the Ozarks in Fayetteville from September 2014 through September 2015. 

Worked ‘Under the Influence’ 

During this time, Levy was the chief of pathology at the Fayetteville, Ark., VA and often was under the influence of drugs and alcohol while at work, according to a complaint that Quick’s daughters filed against Levy and the United States in August 2020. Quick died in September 2015 of squamous cell carcinoma.

As the co-executors of Quick’s estate, his daughters, Catherine A. Hill and Melody K. Jones filed the lawsuit, seeking $3 million in damages on two counts: medical malpractice and wrongful death under the Federal Tort Claims Act. 

In the lawsuit, Hill and Jones alleged that Levy was the pathologist who examined a sample of Quick’s tissue and rendered Quick’s diagnosis after examining that tissue. 

“During Levy’s employment at the Fayetteville VA, Levy severely abused drugs and alcohol and was regularly intoxicated therefrom while providing medical services to Fayetteville VA patients in the course of his employment,” the complaint alleged.

Obvious Signs of Inebriation

“Often times, while under the influence of drugs and alcohol in the course of his employment with the Fayetteville VA, Levy exhibited obvious symptoms of inebriation that should have been readily apparent to those around him and his co-employees at the Fayetteville VA,” the complaint added. 

In addition, Levy concealed being under the influence of alcohol by routinely ingesting 2-methyl-2-butanol [2M2B] to mask the alcohol in his blood during routine drug and alcohol tests that the Fayetteville VA administered to Levy and other employees, the complaint noted. (See “Arkansas Pathologist Faces Manslaughter Charges,” TDR, Sept. 3, 2019.) 

Here are what may be the most relevant facts in the complaint against Levy:

“In providing care to Mr. Quick, Levy negligently entered a materially false and misleading diagnosis in Mr. Quick’s medical records, diagnosing him with small cell carcinoma, when in fact, Mr. Quick suffered from squamous cell carcinoma,” the complaint noted. 

“It is required for first-time malignancy cases to be subject to peer review, which did not happen here. In fact, Levy intentionally falsified records and claimed a second pathologist agreed with this diagnosis of small cell carcinoma, when in fact, a second pathologist did not agree with the diagnosis,” according to the complaint. 

“Levy’s incorrect diagnosis, which he entered into Mr. Quick’s medical records, influenced decisions by Levy and other Fayetteville VA healthcare providers regarding Mr. Quick’s course of treatment,” the complaint added.

Settlement Terms 

The facts in the case led to the settlement last month in which the federal DOJ agreed to pay Hill and Jones $400,000. Of that amount, 25% will be paid to the attorneys for the plaintiffs, Taylor Law Partners of Fayetteville, Ark. 

In reaching the settlement agreement, the DOJ asserted no admission of liability. “This agreement is not, is in no way intended to be, and should not be construed as, an admission of liability or fault on the part of the United States, the Department of Veterans Affairs, or any of its agents, servants, or employees,” the agreement said.

It should be noted that a search for complaints against Levy by the legal staff at O’Connell and Aronowitz of Albany, N.Y., showed that the malpractice and wrongful-death case filed against Levy last year was not the only time he was cited for misconduct. 

A search of records showed that in 1987 Levy was practicing in North Miami Beach, Fla. At that time, the Florida Department of Health cited Levy for providing substandard care, incompetence or negligence, and ordered him to pay a fine of $250 for failing to keep written records justifying treatment. He was given a 12-month probation in this case, disciplinary records show.

Ten years later, in December 1997, the Nevada Board of Medical Examiners revoked Levy’s license and charged him with a violation of a Nevada law related to criminal offenses committed by healthcare professionals. This violation was related to action taken against his license in California, for attempting to renew his license by fraud or misrepresentation, and for engaging in conduct intended to deceive the state Board of Medical Examiners, disciplinary records show. 

Despite these offenses, he was later hired as the Chief of Pathology at the Fayetteville, Ark., VA in 2005, where he worked until his termination in 2018. 

Alcohol Rehab Program

Court documents in Levy’s criminal case describe how, in July 2016, Levy voluntarily entered an in-patient alcohol treatment program which he completed in October of the same year. That fall, as Levy prepared to return to work, he entered an impaired physician monitoring program and agreed with the Mississippi Physician Health Program and the Mississippi State Board of Medical Licensure “to maintain sobriety to ensure his ability to practice medicine with reasonable skill and safety to patients,” according to the indictment.

These facts illustrate how, even while employed at the Veterans Health Care System of the Ozarks, his behaviors and actions were noticed and he was subject to disciplinary action. But even at this stage, did “the system” fail to protect the patients and physicians using the diagnostic reports Levy signed?

Involuntary Manslaughter

In the original indictment, federal prosecutors charged Levy with three counts of involuntary manslaughter and 24 other criminal counts. At that time, The Washington Post reported that VA officials said Levy’s misdiagnoses were responsible for at least 15 deaths. 

The VA said Levy examined 34,000 veterans’ pathology slides from 2005 to 2018. Based on its own review of those slides, the VA in its indictment said, “Almost 10% of the diagnoses he [Levy] made involved clinical errors.” (See “Arkansas Pathologist Faces Three Manslaughter Charges,” TDR, Sept. 3, 2019.)

The different state disciplinary actions and the federal criminal indictments that are in the public record may not tell the full story about Levy’s medical career as a pathologist. In many states, the state medical licensing or review boards can discipline a physician and those actions often remain sealed to the public. Therefore, the full scope of Levy’s problems with state medical boards throughout his career remains unknown. 

A Cautionary Tale

The troubled career of pathologist Robert Morris Levy, as reflected in the public record, is a cautionary tale for all clinical labs and pathology groups. First, public records for physicians or a lab workers may not give full stories. 

Second, if there is evidence of prior problems with job performance and diagnostic accuracy, the employing lab would be well-served to intensify the quality reviews of the diagnostic work performed by those individuals.

Attorney Identifies Useful Lessons to be Learned from Levy Case for Clinical, Pathology Labs

IN A COMMENTARY ABOUT THE CASE INVOLVING THE NOW-JAILED PATHOLOGIST who previously worked at the Veterans Health Care System of the Ozarks, healthcare attorney Jeffrey J. Sherrin offered advice for clinical laboratories and anatomic pathology (AP) groups. Sherrin is an expert in clinical lab and anatomic pathology group management at O’Connell and Aronowitz, attorneys in Albany, N.Y. 

“Robert Morris Levy, MD’s, impairment—and the problems that ensued—are tragic, but by no means unpredictable,” Sherrin wrote. “Alcohol and substance abuse addictions are pervasive and are significant problems for the licensed professions, of which pathologists are no exception. All or most states and medical societies have impaired physician programs, but they depend upon the voluntary reporting and participation of the physician.

“Levy’s case highlights that the victims of such addictions or abuse are not limited to the impaired physicians, but tragically can extend to patients and, in some cases, can lead to unnecessary death. Civil lawsuits are to be expected when a physician or pathologist’s impairment causes patient harm, but the Levy case brings the realization that criminal prosecutions may also stem from such professional misconduct.

“Because the integrity of a pathologist’s reports is of such vital importance to the proper diagnosis of the patient’s condition, laboratories must do everything they can to protect that integrity,” Sherrin warned. “By the same token, it is not feasible for the lab to ensure at all times that its pathologist is not impaired when an interpretation is given.

“Employment law attorneys in labs’ respective states should be consulted on the propriety of periodic toxicology screening, or of requiring such screening on an individual basis in specific circumstances,” he advised. “Beyond that, labs should establish procedures to require employees who become aware—or have reason in good faith to believe—that a pathologist is impaired to report such concerns. Also, clinical labs and AP groups could establish procedures for the anonymous reporting or such impairment.

“If management of a lab becomes aware of such a situation—or even the strong possibility that a pathologist is working while impaired—the lab must take protective measures,” he wrote. “These measures can vary by circumstance, but once the lab is put on notice, it risks liability for its failure to act, in addition to risking serious injury or the death of a patient.

“Appropriate steps can vary by the situation and state and federal law,” advised Sherrin. “Such steps might include drug testing, monitoring, participating in an impaired-physician monitoring program, and suspension or termination depending, in part, on the physician’s willingness to participate and cooperate.

“While actual knowledge then imposes additional responsibilities, labs must not bury their head in the sand to avoid such knowledge,” he noted. “Risks to patient safety are too great and labs that do so can exacerbate their legal liability. What’s more, clinical labs and AP groups must never alter records to hide incriminating information.

“At a minimum, therefore, all labs and AP groups must establish procedures, and train management and staff on the importance of not abusing substances, whether alcohol or otherwise, not to work under the influence, to report known or suspected cases, and to be aware of and take advantage of impairment programs that are available,” he concluded. “It is best for all administrators and staff to keep your eyes open for any signs of impairment and act immediately.”

Contact Jeffrey J. Sherrin at 518-462-5601 or jsherrin@oalaw.com

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