Family details veteran’s suffering during trial on misdiagnosis at Fayetteville VA hospital

Father suffered from cancer missed for 6 years, they say

The Veterans Health Care System of the Ozarks faces a lawsuit over missed diagnoses linked to a former pathologist, Robert Morris Levy, now imprisoned for involuntary manslaughter. (NWA Democrat-Gazette file photo)
The Veterans Health Care System of the Ozarks faces a lawsuit over missed diagnoses linked to a former pathologist, Robert Morris Levy, now imprisoned for involuntary manslaughter. (NWA Democrat-Gazette file photo)

FAYETTEVILLE -- Knowing Jerry Kolpek died from a crime made his death harder to take, members of his family testified in the civil trial against the Veterans Health Care System of the Ozarks on Wednesday in federal court.

"Dad was taken from us," daughter Kristi Whitehill of Iowa testified. "It's not that we lost him."

Kolpek, 83, formerly of Bella Vista, died from cancer that spread untreated for more than six years. Dr. Robert Morris Levy, a former chief pathologist at the VA hospital in Fayetteville, missed Kolpek's diagnosis and others. The Kolpek lawsuit is the first of eight similar suits from the families of former patients, five of whom died before the suits were filed.

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.

The Kolpek family asked U.S. District Court Judge Timothy Brooks for $15 million in damages. Assistant U.S. Attorney Regan Hildebrand, defending attorney for the government, told Brooks in closing arguments the government doesn't dispute that the family is due compensation, only that the amount claimed is unreasonable. He didn't say in his closing arguments what the government would view as a reasonable amount.

Brooks said he will decide the case "sooner rather than later" in a written court order, but gave no deadline. He said there are medical records he wants to review before ruling.

Kolpek had to put his wife of almost 40 years in assisted living shortly before learning of the cancer misdiagnosis, according to testimony. Kolpek learned of the missed diagnosis in a June 2018 conference call. A day-long medical examination in Des Moines, Iowa, two days later found the cancer had spread through his bones from his pelvis up his spine to the base of his skull and throughout his rib cage, and he might have as little as a few months to live.

"I still don't know how he did it," son Doug Kolpek said in an interview, about how his father carried on after the shock of learning his true condition. Kolpek's response to the news was to ask his doctor what, if anything, could be done and to agree to treatment.

His father gave up driving immediately, which was a major sacrifice for him, Doug Kolpek said. He became home-bound at once and then the covid pandemic further isolated his father, he said. The sequence of events shattered what had been, up to that time, a happy family life, he said.

"We wanted to tell our dad's story," Kolpek said after the trial, which began Tuesday. The bulk of the attention in court and in the public before this point had been about Levy, he said. "We wanted to focus on our dad," he said.

Kolpek was a model husband, brother, parent and grandparent, according to family members who testified in the two-day trial. He was also widely respected by his peers, serving 13 years as president of the local union for train engineers. His family had originally moved to Iowa in 1986 because that's where the local union's headquarters were.

Kolpek was a Minnesota native who lived in his home state after retirement in 1999 and then bought a second home in Bella Vista, which he lived in for half the year. He had moved to Clear Lake, Iowa, in 2014 to be near family when his wife, Jo, developed health problems.

Kolpek died three weeks before Levy's sentencing. Until his death, he kept up with the criminal case's 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 Army, died on Dec. 31, 2020.

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.

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 blood or urine tests for alcohol. He passed 42 drug tests in a two-year period after returning to work.

The Veterans Department began reexamination of all 33,902 cases Levy worked on from 2005 to 2017. The review 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, the lawsuit states.

Doctors told Kolpek his weakened skeleton meant he wouldn't survive, for instance, a car crash if his air bag deployed, Kolpek said in video testimony filmed before his death and played at the trial Tuesday. 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.

As Kolpek's disease progressed, the muscles pulling on his bones during regular movement caused persistent pain, he said. He first asked his doctor about muscle pain in his shoulders in 2017, according to testimony. He also had such severe chest pain in early 2018 he went to the local emergency room, believing he was having a heart issue.

After learning the true cause of the pain, doctors told him not to lift anything weighing more than four pounds, according to testimony.

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 because 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.


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