FAYETTEVILLE -- The trial against the Veterans Health Care System of the Ozarks continued Wednesday in federal court with family members describing physical and emotional suffering Jerry Kolpek experienced because of a missed diagnosis of cancer.
Knowing his prostate cancer grew untreated for more than six years greatly increased their suffering as well, family members testified Wednesday.
"Dad was taken from us," daughter Kristi Whitehill testified. "It's not that we lost him."
Dr. Robert Morris Levy, a former chief pathologist at the Veterans hospital in Fayetteville, missed Kolpek's diagnosis and many others. Levy pleaded guilty in June 2021 to one count of manslaughter for missed diagnoses. He was sentenced in January to 20 years in federal prison.
Kolpek kept up with the criminal case progress and wanted to testify at the sentencing, Whitehill said, but he would've been physically unable had he lived. Even short car rides required him to take pain medication first, long before he died, she said.
Kolpek, a veteran of the U.S. Army, died on Dec. 31, 2020.
Levy was suspended after a March 1, 2018, arrest in Fayetteville in connection with for driving under the influence. He was later fired after a U.S. Department of Veterans Affairs investigation concluded he had worked while intoxicated for years.
Reexamination of Levy's work on 33,902 cases from 2005 to 2017 found 3,029 errors, 30 of them serious enough to have lasting health consequences. Levy examined six of Kolpek's tissue samples on Jan. 30, 2012, and incorrectly found the sampled tissues to be benign in 2012, the lawsuit states.
Doctors told him his weakened skeleton meant he would not survive, for instance, a car crash if his air bag deployed, Kolpek said. He went from an active traveler, golfer and football fan who attended games to being home-bound almost immediately, he said, and dependent on others.
Kolpek testified by video for about two hours Tuesday.
As Kolpek's disease progressed, the muscles pulling on his bones during regular movement caused persistent pain, he said.
"I can't change out a light bulb," Kolpek said in one of the videos.
His doctors told him not to lift anything weighing more than 4 pounds, he said, and he could no longer lift his arms above his head.
The suit over Kolpek's death is the first of eight filed by survivors of five veterans who died and three surviving veterans. Each filed suit after Levy missed the diagnosis in his case.
The Kolpek family seeks at least $15 million in damages. Attorneys for the government do not deny the family is due compensation, but not to that amount, they told U.S. District Judge Timothy Brooks. Brooks will decide the case, not a jury.
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.
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.