Family agrees to $3.65 million in second lawsuit over misdiagnosis by VA pathologist

NWA Democrat-Gazette/J.T. WAMPLER Veterans Healthcare of the Ozarks July 2018.
NWA Democrat-Gazette/J.T. WAMPLER Veterans Healthcare of the Ozarks July 2018.

FAYETTEVILLE -- The second of eight wrongful death cases involving a former Veterans Health Care System of the Ozarks pathologist's missed diagnoses ended in a $3.65 million settlement Friday, one day after $4.7 million was awarded to the first family to bring their case to trial.

Court records show the settlement was reached and the case dismissed in the death of Donald R. McGuire of Eureka Springs. Friday's dismissal didn't disclose the settlement amount. Alan Lane of Fayetteville, an attorney for the plaintiffs, confirmed the amount Tuesday.

The remaining six cases are not resolved yet, he said.

U.S. District Judge Timothy Brooks awarded $4.7 million to survivors of Jerry Kolpek, formerly of Bella Vista, after a two-day trial last week. Kolpek was an Army veteran whose cancer went untreated for more than six years because of a missed diagnosis at the VA facility.

Brooks issued his decision Thursday.

The award to the Kolpek family "was a significant factor in the United States reevaluating its position on the McGuire case" and the remaining cases, Lane said.

"We are happy that Donald McGuire's son James can put this matter behind him and know from this settlement that his perseverance resulted in justice for the preventable death of his war hero father at the hands of the VA," Lane said.

The federal government never contested the Kolpek family was due damages, only that the $15 million requested was excessive, court documents show. The two-day trial on the sole issue of damages concluded Wednesday.

Both cases involve Dr. Robert Morris Levy, a former chief pathologist at the VA hospital in Fayetteville. Levy missed the cancer diagnosis in both cases, and others. In these two cases, Levy's error left Kolpek's and McGuire's cancer untreated for years. In McGuire's case, Levy falsified McGuire's medical records by stating a second pathologist at the Fayetteville hospital concurred with him, according to the suit.

Levy was suspended after a March 1, 2018, arrest in Fayetteville in connection with driving under the influence. He was later fired after a U.S. Department of Veterans Affairs investigation concluded he worked while intoxicated for years and had an error rate more than 12 times normal for pathology. Both Kolpek and McGuire died as a result, according to the lawsuits.

Levy pleaded guilty in June 2020 to one count of manslaughter for missed diagnoses. He was sentenced in January 2021 to 20 years in federal prison.

Levy was first found drunk on the job in 2016. A check of some of his test results at the time didn't find serious errors, according to court documents. He returned to work after going to a rehabilitation program and agreeing to submit to random tests for alcohol. Levy then used his medical training to obtain and use a drug, 2m-2b, that is intoxicating, but cannot be found with traditional blood or urine tests for alcohol. He passed 42 drug tests in a two-year period after returning to work.

The Department of Veterans Affairs began reexamination of all 33,902 cases Levy worked on from 2005 to 2017. The review began after the DUI arrests. Pathologist studying of the original tissue samples found 3,029 errors, 30 of them serious enough to have lasting health consequences.

Levy's 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%, a Department of Veterans Affairs review found.

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