FAYETTEVILLE -- A former pathologist for the U.S. Department of Veterans Affairs pleaded guilty Thursday to involuntary manslaughter for making a wrong cancer diagnosis in 2014 and then lying on medical records that another pathologist concurred with him.
"He was treated for a cancer he did not have," Assistant U.S. Attorney Kyra Jenner said of the Air Force veteran, who died five months after the test results were misread. Jenner represented the government at the change of plea hearing.
Robert Morris Levy, 53, of Fayetteville reviewed thousands of lab results since he started work in 2005 at the Veterans Health Care Center of the Ozarks. An independent review of his cases began in 2018 after he was arrested for driving while intoxicated in Fayetteville. That review found 30 cases in which he missed the diagnosis.
He was charged with involuntary manslaughter in August in three cases where a missed diagnosis resulted in a patient's death, according to the federal indictment. He pleaded guilty to one count of manslaughter and one count of mail fraud committed in his effort to conceal his substance abuse.
Levy participated in the hearing by video link from the Washington County jail while wearing a cloth mask and detention center overalls. U.S. District Judge Timothy L. Brooks presided.
Levy faces up to 28 years in prison and $500,000 in fines. He will be sentenced at a later date.
Levy's job paid $225,000 a year, according to his indictment. Besides the three counts of involuntary manslaughter, he was indicted on 12 counts each of wire fraud and mail fraud and four counts of giving false statements to conceal his substance abuse. All other charges but the one count of manslaughter and one count of mail fraud are to be dropped under the plea agreement.
Levy was found drunk on the job in 2016, court records show. He was required to complete a drug rehabilitation program before returning to work and then submit blood and urine samples for tests. He passed 42 such tests in two years.
Investigators found he did so by using a drug that intoxicates like alcohol, but isn't traceable by breath, blood or urine tests for alcohol.
The criminal investigation of Levy's substance abuse arose from his March 1, 2018, arrest for driving while intoxicated. The charge was later dismissed because police tests also found no alcohol. Still, the VA suspended Levy after his arrest.
The system fired him the next month during the federal investigation that discovered drug purchases and later led to his indictment.
Levy's role at the health care system was to examine test results of tissue and fluid samples to determine illnesses, if any.
The review of his cases by other pathologists took until May 2019. Those pathologists found 30 missed diagnoses posing serious health risks to patients, according to results released May 31, 2019, by the health care system. He was indicted Aug. 16.
Overall, pathologists found 3,029 errors out of 33,902 cases, but most patients didn't suffer long-term ill effects, according to the review.
The 3,029 errors out of 33,902 cases make for an error rate of 8.9% compared to a pathology practice average of 0.7%, according to veterans department figures.
Neither the indictment nor the plea agreement names the patient whose death led to the manslaughter charge. According to Jenner's summary of the case during Thursday's hearing, Levy wrote in his Feb. 5, 2014, diagnosis that another pathologist concurred in his diagnosis. Not only was that untrue, but the pathologist named hand-delivered a letter to Levy the next day saying he disagreed with the diagnosis and believed more tests were needed, Jenner told the court. That fact was never conveyed by Levy to the patient's doctors but Levy did change the diagnosis four days later -- to another wrong conclusion, Jenner said.
Levy was first monitored for alcohol abuse after administrators at the Veterans Health Care System of the Ozarks received a report he was intoxicated while assisting in an ultrasound-guided taking of a sample from a patient's liver. That report was March 22, 2016, according to court records.
A blood test at the time showed Levy's blood alcohol level at more than 0.39.
"For a normal human being, a 0.396 would be comatose level," special agent Kris Raper of the Office of Inspector General for the Department of Veterans Affairs testified at a bond hearing for Levy in September.
A 2016 review of his work didn't find any missed diagnoses by Levy, according to the Ozark System. The medical center put Levy on leave and through substance abuse treatment after the 2016 test. The center later put him back to work, but required him to provide random blood and urine samples for testing.
Levy then bought a potent, dangerous drug to get intoxicated by a method that wouldn't show up in blood or urine tests, the indictment says. Levy made his first purchase of the drug in February 2017. The fraud counts stem from the purchases of the drug with the intent to keep his job while evading the testing. Investigators found Levy bought the drug 12 times online starting June 30, 2017.
The drug Levy used is called "2m-2b," the indictment says. The chemical is so hard to detect the Arkansas Crime Laboratory in Little Rock had to order a new test kit to confirm the drug in a sample of Levy's blood, Raper testified. The agent said Levy's case was the first time the Crime Laboratory had tested for the drug.
Levy passed 42 blood or urine tests, an average of two a month, according to his indictment.
Levy's drug use was discovered after March 1, 2018, after a Washington County sheriff's office deputy saw him walking toward his car at the U.S. Post Office on Dickson Street in Fayetteville. The deputy thought Levy was intoxicated and held him until a police officer arrived. The officer arrested Levy for driving while intoxicated because Levy drove to the Post Office and failed a field sobriety test.
The three breathalyzer tests Levy took immediately after his arrest reported an "interfering substance" each time, police records show. The DWI charge was later dismissed after Levy's blood and urine samples taken after the arrest came back clear.
The drug passes through the body so quickly it would require three tests a week to ensure the subject wasn't using the substance, according to bond hearing testimony. The lack of a reliable regular test method for 2m-2b was a factor in deciding against allowing bond, U.S. Magistrate Erin L. Wiedemann, who presided at the bond hearing, said at the time. Levy has remained at the Washington County Detention jail since.
Bryan Smith of Memphis, an attorney who represents some of the families who were victims of missed diagnoses of Levy's, didn't return a phone call asking for comment Thursday afternoon.
Doug Thompson can be reached by email at [email protected] or on Twitter @NWADoug.