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Veteran pathologist's victims' lawsuits headed for trial, attorney says

by Doug Thompson | October 5, 2021 at 7:20 a.m.
NWA Democrat-Gazette/J.T. WAMPLER Veterans Healthcare of the Ozarks July 2018.

FAYETTEVILLE -- The U.S. Justice Department is arguing in court documents that the Veterans Health Care System of the Ozarks wasn't negligent for employing a pathologist who worked while intoxicated. The same Justice Department successfully prosecuted the pathologist for involuntary manslaughter last year.

The department is responding to lawsuits filed against the health care system and U.S. government that are related to the missed diagnoses by Robert Morris Levy, court records show. Levy served as chief pathologist at the Veterans Health Care System of the Ozarks in Fayetteville until he was suspended after a March 1, 2018, arrest in Fayetteville for driving under the influence. He was later fired before being indicted after a U.S. Veterans Department investigation concluded Levy had worked while intoxicated for years.

Levy pleaded guilty in June of last year to one count of manslaughter for missed diagnoses. He was sentenced in January to 20 years in federal prison.

The Justice Department has responded since August to four of the eight pending lawsuits brought by survivors of five veterans who died and three surviving veterans. Each filed suit after Levy missed the diagnosis in his case.

Deadlines for government responses in four remaining cases are pending, court records show. The Justice Department, which routinely does not comment on pending litigation, declined comment Monday. A ninth case was settled out of court in April, records show.

Levy's DUI arrest triggered a yearlong review of 33,902 pathology results by him, which found 30 missed diagnoses posing serious health risks to patients from 2005 to 2017.

The review by outside pathologists discovered 3,029 errors, but concluded few of those mistakes carried lasting, serious consequences. Those 3,029 errors out of 33,902 cases made for an error rate of 8.9% compared to a pathology practice average of 0.7%, the review found.

Evidence and witness testimony the Justice Department gathered or used against Levy is cited extensively in each of the wrongful death lawsuits. The evidence includes a U.S. Department of Veterans Affairs Office of the Inspector General's report that said investigators found a culture at the health care center in which staff did not report serious concerns about Levy, in part because of a perception that others had reported or they were concerned about reprisal.

"Any one of these breakdowns could cause harmful results," the report reads. "Occurring together and over an extended period of time, the consequences were devastating, tragic and deadly."

Levy was in charge of the quality management program of his own department, the inspector general found. This situation went on for 12 years, the report noted.

A sentencing conference in federal court anticipates a mid-October 2022 trial start for the case of the estate of Donald R. McGuire vs. the United States, said Alan L. Lane of Fayetteville. Lane is attorney for McGuire's estate along with seven other plaintiffs in related cases. This suit and others related to Levy seek unspecified monetary damages. Trial dates for other cases have not been discussed, Lane said.

McGuire was a Bella Vista resident whose primary care doctor ordered a biopsy of McGuire's prostate in January 2009, according to his estate's lawsuit.

Levy reviewed McGuire's pathology materials and found the biopsy negative for prostate cancer, the lawsuit says. Levy then falsified McGuire's medical records by stating a second pathologist at the Fayetteville hospital had concurred with him, according to the suit.

McGuire went without treatment for cancer for five years and seven months because of the missed diagnosis, according to the lawsuit. He died April 28, 2016, age 84.

The estate of John Ray Gibbs of Gravette filed suit in June. Levy pleaded guilty to manslaughter for causing Gibbs' 2014 death.

"On or about November 2013, Mr. Gibbs' primary care physician became concerned when Mr. Gibbs presented with a knot on the right side of his neck," the lawsuit in that case says. The doctor ordered a biopsy.

Levy reviewed Mr. Gibbs' pathology materials and entered an incorrect diagnosis in February 2014, the lawsuit says. He later changed his diagnosis and falsely claimed to have notified a member of Gibbs' surgical team of the change, but did not document notifying the hospital's chief of staff as required by the policy, the lawsuit says.

Dr. Mark Worley, the hospital's chief of staff,, met with Levy about reports his breath smelled of alcohol while at work, the lawsuit says, citing the U.S. Department of Veterans Affairs investigation conducted after Levy's arrest. "Dr. Levy claimed that the smell was from a juice mixture he drank to lose weight, and the explanation was accepted by Dr. Worley who took no further investigative actions."

"Mr. Gibbs did not have either of the two cancers with which Dr. Levy erroneously diagnosed him," the lawsuit says. Doctors ordered aggressive chemotherapy treatments based on Levy's last conclusion. Gibbs, 61, died at the Fayetteville hospital July 26, 2014.

Jerry R. Kolpek, 83, of Bella Vista also had his prostate cancer diagnosis missed, according to his estate's lawsuit.

Levy reviewed the pathology materials and incorrectly found the prostatic tissues to be benign, the lawsuit states.

"As a result, there was a six-year and four-month period of delay between when Mr. Kolpek's cancer had been present and diagnoseable and when he was made clinically aware that the biopsy examined by Dr. Levy on January 30, 2012, was positive for cancer," the lawsuit says.

Kolpek died of prostate cancer on Dec. 31, 2020.

Family members of deceased Army veteran Boyd Gipson of Greenwood have also sued. Gipson was treated for a form of cancer he didn't have after Levy's incorrect diagnosis, according to the review of Levy's work. Gipson died Dec. 15, 2017.

The estate of David Phillips of Huntsville also filed suit. Phillips was also a U.S. Army veteran. A September 2013 scan showed signs of lymphatic cancer, according to that lawsuit. Phillips never received cancer treatment after Levy pronounced the biopsy of the tumor was benign, the suit says. Phillips died Dec. 5, 2014.

The lawsuit brought by the estate of John D. Quick of Greenwood was settled in April for an undisclosed amount, court records show. Quick went to the veterans hospital Sept. 22, 2014, the suit says. He died Sept. 13, 2015, after Levy both missed Quick's diagnosis -- he named the wrong disease -- and falsely put in Quick's medical records that another pathologist agreed with his finding, according to the suit.

Three survivors of a missed diagnosis by Levy also filed lawsuits. Robert Long of Johnson County had part of his esophagus removed in 2018 because of a missed cancer diagnosis from 2013, his lawsuit says.

Army veteran George Parker of Sebastian County filed a medical malpractice suit over a missed diagnosis that delayed proper treatment for his prostate cancer for more than nine years, according to one of the suits.

Parker's biopsy for the cancer was declared negative by Levy on March 24, 2009, the suit says. The error was discovered by a review of Levy's cases in 2018. Parker received a correct diagnosis in September of that year. His subsequent surgery left him hospitalized for nine days.

Wayne Goins of Mount Vernon, Mo., also filed suit. The Army veteran's suit says Levy diagnosed the wrong kind of lung cancer in June of 2017 even though another pathologist at the time disputed the finding and diagnosed the cancer correctly. Goins received treatment for the wrong cancer for nine months, his lawsuit says.

"Mr. Goins was first made aware of the change in diagnosis when the U.S. Attorney's Office contacted him concerning Dr. Levy's sentencing hearing," his lawsuit says.

More News

U.S. Department of Veterans Affairs Office of Inspector General Report on oversight of Dr. Robert Morris Levy:


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