CEO SUMMARY: Federal prosecutors in Arkansas charged a former Veterans Administration pathologist with three counts of involuntary manslaughter and 28 other criminal counts related to his work at the Veterans Health Care System of the Ozarks. In the indictment, officials charged that the pathologist’s misdiagnoses contributed to the deaths of 15 patients. The pathologist had been disciplined for alcohol abuse and had undergone addiction treatment, officials announced.
FEDERAL AUTHORITIES INDICTED AN ARKANSAS PATHOLOGIST last month on three counts of involuntary manslaughter, 12 counts of wire fraud, 12 counts of mail fraud, and four counts of making false statements related to his work for the Department of Veterans Affairs, officials announced.
Four days later, on Aug. 20, federal officials arrested pathologist Robert Morris Levy, age 53, after a year-long investigation, according to an announcement from Duane Kees, the U.S. Attorney for the Western District of Arkansas, and Michael Missal, Inspector General of the Department of Veterans Affairs.
Worked in Fayetteville
Levy had served as the Chief of Pathology and Laboratory Medical Services for the Veterans Health Care System of the Ozarks, in Fayetteville, Ark., from 2005 until he was fired in April 2018.
Charging a pathologist with three counts of involuntary manslaughter is a significant development for the pathology profession, because, as the Washington Post reported, it is extremely rare that federal officials will bring a criminal case against a pathologist. Most such cases involving misdiagnoses are addressed in civil court through malpractice claims, the Post reported.
However, the outcome of this case could be a precedent that gives other prosecutors the confidence that they can file criminal charges in cases where evidence shows that a pathologist’s actions contributed to diagnostic errors that directly contributed to the death of one or more patients.
Review of 33,902 Cases
Levy had a history of alcohol abuse at the VA hospital over several years, the indictment showed. After he was fired, VA officials had outside pathologists re-examine 33,902 of Levy’s cases in June 2018. During that review, the independent pathologists found more than 3,000 mistakes or misdiagnoses of patients at the VA hospital dating to 2005, and 30 of those misdiagnoses resulted in serious health risks to patients. (See “Pathologist’s Errors Associated with 12 Deaths at Arkansas VA,” Feb. 25, 2019, and “Pathology Errors a Factor in 3 Deaths at VA Hospital,” TDR, Oct. 1, 2018.)
In the 16-page indictment, federal officials explained that Levy was suspected of being under the influence while at work in 2015, and was tested for drugs and alcohol and suspended in March 2016 and again in October 2017.
When he returned to work, Levy enrolled in a drugs-and alcohol-monitoring program but still managed to use drugs without being detected, despite being tested for drugs and alcohol 42 times over 20 months, the indictment said. By taking an intoxicating drug called 2-methyl-2-butanol (2M-2B), Levy avoided detection because 2M-2B is undetectable in routine drug and alcohol testing, the indictment said.
During this time, Levy reported that he had an error rate of 5% and was paid a financial bonus in 2016 and 2017 for having such a rate, when in fact his error rate was about 10%, the indictment said.
While VA officials told investigators his errors led to the deaths of 15 VA patients, Kees charged Levy with involuntary manslaughter in three VA patients’ deaths, saying these were “the most serious and prosecutable cases,” the Washington Post reported.
Levy’s scheme to cover up years of drug and alcohol use on the job caused him to misread thousands of fluid and tissue samples of ill patients, the newspaper added. Over 12 years of work for the Veterans Health Care System of the Ozarks, Levy examined some 34,000 pathology slides from veterans, the Post wrote.
Levy’s problems started in October 2015 when VA staff reported that he appeared to be intoxicated on duty, according to a 16-page superseding indictment that Kees filed. Levy denied the allegation when medical personnel questioned him at the time.
Six months later, in March 2016, Levy was working in the pathology laboratory when he was called to the radiology department to assist with a biopsy. “Levy appeared intoxicated when he arrived in the radiology department. He was asked to submit to a drug and alcohol test,” the indictment states.
The VA and an independent medical facility tested his blood alcohol level and reported it was at 396.0 milligrams per deciliter (or 0.396 g/dl). As a result, the VA suspended his privileges to practice medicine. In July 2016, Levy voluntarily entered an in-patient alcohol treatment program, which he completed in October of the same year, the indictment said.
That fall, as Levy was preparing 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.
In this program, Levy agreed to “abstain completely from the use of … alcohol and other mood-altering substances” and submit to random drug testing. He returned to work at the VA on Oct. 13, 2016.
In addition to onsite drug and alcohol testing at the VA, Levy also was tested randomly for drugs and alcohol through the impaired-physician monitoring program. “The testing protocol for the impaired-physician monitoring program required Levy to randomly provide urine specimens and blood samples,” the indictment said.
Indictment of Arkansas Pathologist Explains Three Counts of Involuntary Manslaughter
IN THE INDICTMENT OF ROBERT MORRIS LEVY, MD, the former pathologist for the Department of Veterans Affairs who was indicted and arrested last month, federal officials explained the three counts of involuntary manslaughter.
From about Feb. 4, 2014, to about July 26, 2014, while working as a pathologist at the Veterans Health Care System of the Ozarks, in Fayetteville, Ark., Levy caused the death of a patient identified as JRG. In the indictment, federal officials said, “…on or about Feb. 4, 2014, Levy entered an incorrect and misleading diagnosis of diffuse large B cell lymphoma in JRG’s medical record and falsified an entry in JRG’s medical record that stated a second pathologist concurred with the diagnosis of diffuse large B cell lymphoma.”
Then on Feb. 10, 2014, Levy changed the incorrect and misleading diagnosis of diffuse large B cell lymphoma in JRG’s medical record to another incorrect and misleading diagnosis, namely adenocarcinoma, the indictment said.
In fact, JRG’s tissue biopsy did not show that the patient had either type of cancer, the indictment said. JRG was treated for a type of cancer the patient did not have, the patient did not respond to the wrong treatment, and JRG died of small cell carcinoma in July 2014, the indictment added.
In the second case of involuntary manslaughter, the indictment said that from Sept. 22, 2014, to about Sept. 13, 2015, Levy caused the death of a patient identified as JDQ by entering an incorrect diagnosis of small cell carcinoma and a false entry in JDQ’s medical record that a second pathologist concurred with the diagnosis of small cell carcinoma. In fact, JDQ’s tissue biopsy revealed squamous cell carcinoma and Levy knew that a second pathologist did not concur with the diagnosis of small cell carcinoma, the indictment said. On about Sept. 13, 2015, JDQ died of widely-spread squamous cell carcinoma.
In the third case of involuntary manslaughter, the indictment said, Levy caused the death of a patient identified as DRM by entering an incorrect diagnosis into DRM’s medical record stating that the patient’s prostatic tissue was benign. DRM then relied on pathologist Levy’s diagnosis that his biopsy was negative for cancer, when in fact, the patient’s prostatic tissue was obviously cancerous, the indictment said. DRM did not receive timely treatment and died of metastatic prostate cancer on about April 28, 2016.
Reckless Homicide Charges Against a Pathologist Were Considered in Earlier Case
THERE IS AT LEAST ONE OTHER CASE WHERE A PATHOLOGIST faced the possibility of a criminal charge for homicide or manslaughter as a result of actions linked to diagnostic errors that directly contributed to one or more patient deaths.
That case made headlines in 1995, when a district attorney in Wisconsin County, a suburban area to Milwaukee, filed two counts of reckless homicide against Chem-Bio Corporation, a clinical laboratory company located in Oak Creek, Wisconsin.
After two female patients, aged 29 and 40, died of cervical cancer, despite having had annual Pap smear tests, an investigation of Pap testing practices at Chem-Bio was conducted. It was determined that pathologist Robert Lipo, MD, the owner and laboratory director, and cytotechnologist June Fricano, (who read the cases of those two patients), failed to follow established practices and laboratory regulations.
It was also learned that Fricano was paid $2 per Pap slide and, during one year, had screened more than 48,000 Pap slides. That same year, she was paid $96,000 from Chem-Bio, at a time when the average cytotech made about $33,000 per year.
One news story quoted a Chem-Bio co-worker of Fricano’s as describing how Fricano circumvented the random selection of Pap slides for quality control review by using the number 2 when it was the last digit on the slide’s accession number. This same cytotech told a reporter that, in 1991, at the request of a doctor, she pulled a Pap slide from 1987 and described it as having “almost no normal cells on it,” even though it was orginally reported as normal.
Milwaukee County District Attorney Michael McCann presented the findings of this investigation to a Milwaukee inquest jury. As reported by the DePaul Journal of Healthcare Law, “The inquest jury came back with an unprecedented recommendation: charge Chem-Bio, [cytotechnologist] June Fricano, and Robert Lipo, the head of the laboratory, with reckless homicide. McCann decided against prosecuting Fricano and Lipo. ‘There was no criminal intent on any individual’s part,’ McCann stated.”
Instead, McCann chose to charge Chem-Bio with two counts of reckless homicide. Chem-Bio settled that case in December, 1995. It pleaded no contest to the charges and paid the maximum legally allowable fine of $20,000. In exchange for deferring prosecution for six years for the reckless homicide charges, Lipo and Fricano each agreed to a settlement that limited what responsibilities they could perform in clinical laboratories.
Impaired Doctor Monitoring
From November 2016 through July 3, 2018, Levy provided 42 urine specimens or blood samples that were collected and tested pursuant to the impaired physician monitoring program. All were reported negative for the presence of drugs or alcohol, the indictment said.
“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 (2M-2B), a chemical substance that enables a person to achieve a state of intoxication but is not detectable in routine drug and alcohol testing methodology,” Kees said when he announced the indictment and arrest.
In October 2017, Levy’s colleagues reported that he appeared to be intoxicated on duty. When VA officials tested Levy’s urine and blood, no drugs or alcohol were detected.
In 2016 and 2017, the VA paid Levy an annual salary of $225,000, contributed to his retirement account, paid for other employee benefits, and gave him financial performance bonuses. The performance bonuses were due, in part, to Levy’s reports to the VA that his clinical error rate was less than 5%. In fact, almost 10% of his diagnoses involved clinical errors, the indictment said.
The indictment showed that on 12 occasions from June 30, 2017, through June 13, 2018, Levy used the online auction site Ebay.com and Amazon Marketplace to buy 500 milliliters of 2M-2B from Chemsavers Inc. The purchases resulted in 12 counts of wire fraud and 12 counts of mail fraud.
In addition to mail and wire fraud, the indictment explained that Levy made false statements on four occasions. The first false statement was made on June 14, 2017, when Levy entered into the medical record of a patient identified as WG that a second pathologist concurred with his diagnosis of non-small-cell carcinoma when the second pathologist had not yet reviewed the case, the indictment said.
Levy made the other three false statements in June and July 2018. One false statement was on June 4, 2018, during a VA hearing, one on July 20, 2018, to a VA investigator, and one on July 23, 2018, to the same VA investigator, as described in the indictment.
Contact Duane Kees at 479-783-5125.