How the VA failed to stop a pathologist who misdiagnosed 3,000 cases
By LISA REIN | The Washington Post | Published: August 30, 2019
ROGERS, Ark. — By the time he and his wife Sara faced Veterans Affairs medical staff across a conference table in September, Kelly Copelin had lost 75 pounds and could swallow only small pieces of solid food. Radiation therapy had blistered his throat.
This was the moment they would finally learn why their lives were so changed. Why when he went to the Fayetteville VA three years earlier with a severe earache, the biopsy came back negative - and he was given antibiotics instead of treatment for what was diagnosed 13 months later as late-stage neck and throat cancer.
The pathologist who had misdiagnosed Copelin's diseased tissue in 2015 was intoxicated, the hospital's chief physician told the couple. He had failed to see the squamous cell carcinoma on the slide before him, the doctor said.
"We are so sorry," Copelin, 63, remembers him saying.
Sobbing, the retired Air Force master sergeant said he asked whether he would be suffering this much if the cancer had been caught before he was at stage 4, with tumors spread to both sides of his face. The treatment would have been the same, doctors told him, stopping short of answering his question directly.
The assurances and apologies have come as cold comfort to the families of 21,000 veterans diagnosed by chief pathologist Robert Morris Levy over 12 years, many of whom will live for years with the consequences of his mistakes.
Compounding their pain is a sense of betrayal that VA officials did not intervene sooner, firing Levy only after he was arrested in the spring of 2018 for driving under the influence.
On the Fayetteville campus, rated one of VA's best, Levy's supervisors failed to heed early warnings that he was endangering patients and then were slow to act, according to internal VA documents, court filings and interviews with 20 congressional officials, veterans and current and former VA employees.
Federal prosecutors charged Levy, 53, last week with three counts of involuntary manslaughter in the deaths of three veterans. VA officials now acknowledge that he botched diagnoses of at least 15 patients who later died and 15 others whose health was seriously harmed.
The number of those affected, however, is much greater, and the full repercussions of Levy's actions may not be known for years. VA officials say Levy made 3,000 errors or misdiagnoses dating to 2005.
VA officials say they have added oversight of small specialty staffs across the system - as was the case in Fayetteville - to ensure "independent and objective oversight."
The Fayetteville medical center has also increased monitoring of its clinical lab.
"VA grieves for all of the Veterans and loved ones affected by this heartbreaking situation," VA Secretary Robert Wilkie said in a statement to The Washington Post. "It's hard to fathom how a physician sworn to do no harm could be so reckless, and the fact that his behavior continued for some time is testament to his shameless duplicity."
He said the agency has made systemwide changes are designed to prevent another case like Levy's.
"Like all health care providers, VA occasionally experiences unexpected adverse outcomes in a small percentage of cases. When that happens, we hold ourselves accountable," Wilkie said, adding that Fayetteville VA officials are working to "regain the trust" of veterans "while helping bring two things to this situation that have been lacking for far too long: accountability and justice."
Levy is now in jail in Fayetteville, pending a bond hearing. His attorney, Darren O'Quinn, said his client "did what VA said and got treatment" for his addiction.
"People aren't perfect, and medical doctors aren't perfect," O'Quinn said. "You're going to have some errors. That doesn't mean you're a criminal."
He said he plans to dispute the number of misdiagnoses.
The mistakes of a physician they never saw has sowed anger among an aging population of veterans whose illnesses Levy was charged with diagnosing and monitoring. Many had cancers he missed. Others were told they were sick when they were healthy - and mistakenly given invasive treatment.
Prosecutors say Levy concealed his errors by altering patient records and evaded detection by swallowing a dangerous substance that gave him a quick and powerful high, but that was indiscernible on common drug and alcohol tests.
His patients and their relatives say they blame VA for allowing him to continue to practice.
"I went from, 'Your earache isn't anything' to stage 4," Copelin said. "With VA, it's competence and integrity. Both of those have been shot right out the door."
A VA spokeswoman said the agency "used all legal measures in its control to fire the employee as quickly as possible."
But even after he arrived impaired at the lab at least twice, VA awarded Levy two performance bonuses on top of his $225,000 salary based on peer reviews that appeared to show that he had a minuscule clinical error rate, according to the indictment.
The truth was just the opposite. An unprecedented 18-month review completed this summer by a team of pathologists from other VA hospitals and affiliated medical schools uncovered a rate of misdiagnoses of nearly 10 percent, more than 10 times the normal frequency of mistakes by pathologists.
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VA officials are calling what unfolded in Specialty Building 21 at the Veterans Health Care System of the Ozarks in Fayetteville an isolated case. But the agency's sprawling network of 167 hospitals and 1,000 clinics has long struggled to police problem doctors, audits and internal investigations show.
Inspector General Michael Missal's office in recent years has identified multiple VA physicians who continued to practice even after they were found to have compromised patient care. A report this year by the Government Accountability Office found weak systems for ensuring that problems are quickly addressed when a physician's quality of care to veterans is compromised. On Wednesday, Missal said his staff is investigating as many as 11 suspicious deaths of veterans at the Louis A. Johnson VA Medical Center in Clarksburg, West Virginia.
On Friday, Bill Powell, U.S. attorney for the Northern District of West Virginia, said his office is conducting an "ongoing and comprehensive federal criminal investigation" in the case, which he called "a top priority."
The scope of the damage Levy allegedly caused in Arkansas has also added to scrutiny around VA's oversight.
"It's a manifestation of bureaucracy at its worst," said Rep. Steve Womack, R-Ark., whose district in northwest Arkansas includes the hospital. "In any other setting, an individual entrusted with the care of patients found to be impaired like this would have been terminated right away."
He said VA lacked "checks and balances" that should have uncovered Levy's mistakes long ago.
When he joined VA in 2005 from a private lab in Naples, Florida, Levy was a star hire, an Air Force veteran who, at 39, was years younger than many of the physicians who end their careers in the military health-care system. He had a medical degree from the University of Chicago, and he had completed a pathology residency at the University of California at San Francisco and a fellowship at Duke University in a subspecialty focusing on diseases of the blood.
But Levy did have one blot on his record: a 1996 arrest and conviction for drunken driving in Alameda County, California, where he was sentenced to three days in jail and three years probation, public records show.
VA officials declined to address whether his conviction was known before he came aboard, saying in a statement that his hiring "occurred more than a decade ago under previous medical center leadership and a previous administration."
Pathology was a hard-to-recruit specialty, and one vital to serving a growing population of veterans retiring to the mountains at the junction of northwest Arkansas, eastern Oklahoma and southwest Missouri, known as the Ozarks. Levy was named chief of pathology and laboratory medicine services.
He could be personable with colleagues, although he mostly kept to himself, said one former colleague, who spoke on the condition of anonymity to speak freely. Most days, he arrived at the lab at 5 a.m. to read tissue and fluid slides and finished around 1 or 2 p.m.
As the hospital's needs grew, so did Levy's responsibilities. He opened new pathology labs at satellite clinics and was appointed to multiple oversight boards and medical committees, supervising about 100 employees.
As a safeguard against errors, Levy and his deputy were required each month to review a random sample of 10 percent of each other's cases, a routine practice among pathologists.
Levy consistently had a tiny error rate, at times even zero. The chief pathologist was altering his deputy's reviews to show them as concurring with all of Levy's diagnoses, according to the indictment and people familiar with his actions.
In fact, his mistakes were piling up.
In 2011, Edward Jamison drove to the hospital from his home in Poteau, Oklahoma, with severe stomach pain. But Levy missed his esophageal cancer, VA officials would acknowledge in a phone call earlier this year to his daughter, Tina Carter, of southern Illinois. Her father, drafted into the Navy out of high school, was not diagnosed for two years. He died in his sleep in 2014.
Sometime after Mark Worley arrived at Fayetteville as the hospital's chief physician in 2012, he started getting complaints that Levy was showing up to the lab drunk, according to investigators. "People were coming to him saying, 'Levy has a problem,' " said an official with knowledge of the investigation, who spoke on the condition of anonymity to describe an ongoing inquiry.
"There were complaints about Levy over time, and Dr. Worley did respond to them," said Shane Wilkinson, Worley's attorney, declining to elaborate.
One employee reported him to supervisors as intoxicated in 2015, but Levy denied the allegation to a panel of hospital medical staff, according to the indictment. No further action was taken, investigators found.
His staff was growing more alarmed by his erratic behavior, according to officials. But Levy continued to beat the average error rate for pathologists of 0.7 percent. VA gave him a bonus.
In March 2016, Levy was intoxicated when he was called to the radiology department to assist with a biopsy. A VA-ordered test showed his blood alcohol level at 0.4, five times the legal limit in Arkansas of 0.08, a level that put him at risk of coma and death, prosecutors said.
VA officials suspended Levy and reported his alcohol impairment to state medical boards - but gave him a second chance. He entered a three-month inpatient treatment program in Mississippi at taxpayer expense, officials said.
Worley allowed Levy to enter a treatment program "because he was following what he believed were the protocols in place at the time," said Wilkinson.
After completing treatment, the pathologist returned to the lab in crisp dress pants and shirts, having agreed to submit to random drug and alcohol tests.
Over the next year, 42 urine and blood samples would turn up negative for alcohol and drugs, according to court records. The peer reviews showed his error rate was zero. VA gave him another bonus.
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Levy's reward came within months of Robert Thomas Chick's death at age 70 of a lung cancer that Levy had missed two years earlier, investigators later determined. When Chick finally was diagnosed - weak and his breathing labored - the cancer had metastasized. He died five months later.
His daughter-in-law, Eva Chick, said she wept as she watched Levy's arrest on the local news.
"They killed my father-in-law," Eva said, as she and her daughter, Lisa, ate lunch last week at his favorite diner in Alma, Arkansas, a town where the median family income is $35,000.
Drafted to fight in the Vietnam War in 1966, Robert Chick lived and died in a small apartment behind the restaurant, where Eva took care of him. Dressed in flannel shirts and cowboy boots, he ate three meals a day at D's Family Restaurant, sitting in his favorite booth.
"He died a horrible death," his granddaughter said.
Two months after Chick died, Levy appeared drowsy and was "speaking nonsense phrases" when he arrived to chair an October 2017 meeting of the hospital's tumor board, according to the minutes of a January 2018 meeting of the hospital's professional standards board.
Attorney Monte Sharits, who is representing multiple veterans in the case, obtained the minutes through a public records request and provided them to The Post.
Levy was sent home, and the hospital was forced to cancel multiple surgeries and medical procedures that required a pathologist to be present, records show.
Levy tested negative for illegal drugs and alcohol, according to court records. Still, VA suspended his clinical privileges and allowed him to return to nonclinical work, according to investigators.
In January 2018, after multiple staff reports that he was still impaired, the hospital's professional standards board continued Levy's suspension. Spot checks of his cases showed "no evidence of patient harm," according to the minutes.
Still, Worley brought in a pathologist from VA's division headquarters for another review of Levy's work. She found more than a dozen misdiagnoses.
"Dr. Levy's actions have negatively impacted patient care outcomes," Worley and the medical director at the time wrote in a memo on Jan. 11, 2018.
It would be six more months before VA began a deeper review of his work.
In March 2018, local police spotted Levy driving erratically in a post office parking lot and arrested him for driving under the influence.
Levy was fired the next month.
The police toxicology report detected a dangerous substance in Levy's blood called 2-methyl-2-butanol - or 2M2B - a colorless liquid that, taken in tiny doses, induces euphoria within 30 minutes. Taken improperly, it can be fatal.
Federal prosecutors later said Levy repeatedly bought 2M2B over the Internet to mislead VA and keep his job.
It was not until June 2018 that VA officials notified medical boards in three states where he was licensed that Levy could no longer practice medicine - a delay that concerned the inspector general's office, according to an internal VA incident report.
The same month, VA finally went public about Levy.
The hospital had fired a physician who was impaired, local officials said at a news conference in Fayetteville. A team of outside pathologists would review all of his cases and notify veterans whose health care was affected.
What VA didn't say was that the team in Washington assigned to the case initially only planned to scrutinize Levy's diagnoses from the past year - a limited review that Missal, the inspector general, called unacceptably short and "of deep concern" in a letter to VA's top health official in Washington that was obtained by The Post. The review was ultimately widened to cover his entire employment, from 2005 to 2017.
Worley retired the day of the news conference. His attorney said he expects the former chief physician to testify against Levy at his trial.
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In the months that followed, VA held town hall meetings with families in the hospital auditorium. The risk management staff handed out claim forms they could submit to the agency for a settlement. After six months, they could sue VA in federal court.
The meetings were chaotic and raw. Kelvin Parks, the interim medical center director at the time, said VA would do right by its veterans. He told them he served in the Navy. He apologized for the doctor's mistakes.
Kelly Copelin's wife, Sara, took the microphone. "I don't know how long I'm going to have my husband," she said.
"We don't know how long any of us are going to be here," the couple recalled Parks saying.
Darrell Darner, 73, was in the audience, wearing bandages that covered his face following a second reconstructive surgery on his nose and sinuses to treat advanced skin cancer.
Darner, who made 2,000 parachute jumps as an Army Special Operations soldier and who is now a cattle rancher, said that after he learned about Levy's errors, he asked Worley to check whether the pathologist had missed his skin cancer three years earlier when a suspicious spot on his nose was biopsied.
Worley called him that night and told him that his basal cell carcinoma was misdiagnosed, Darner said.
"I've always trusted the VA," Darner said. "I still trust them. I've just got to watch them."
After his firing, Levy relocated to Saba, a small island in the Dutch Caribbean, where he secured a position teaching pathology on the faculty of the local medical school, his lawyer said. At the time, he had active medical licenses in California and Florida. They were not revoked until this spring.
He returned to Fayetteville in July, weeks before his arrest.
Meanwhile, some former patients are still waiting anxiously to learn what Levy's misdiagnoses mean for them.
"The shame of this is that a lot of these people are still in limbo," said Bryan Smith, an attorney representing several veterans. "You don't have cancer. You might have cancer."
VA officials said they have contacted the families in the 30 most serious cases to advise them of their legal and treatment options. Copelin said he was not among them.
In the past year, his condition has deteriorated. He now eats through a feeding tube in his stomach, subsisting on cans of liquid nutrition that cost VA $4,000 a month, the couple said. Solid food could lead him to aspirate into his lungs and risk a life-threatening infection.
He sat one morning last week in the recliner in his family room, his head and upper body in a brown compression vest hooked up to a machine that stimulates his poorly functioning lymphatic system.
It's the start of a 90-minute routine he must endure twice a day - a regimen of crushed pills and five cans poured into a sterile plastic bag, which he carries in a black knapsack everywhere he goes.
Copelin can no longer fish or swim in the many lakes near their house. This summer, the couple sold their hobby farm and moved to the suburbs because he can no longer drive his tractor.
"He's 100 percent different," Sara said.
The couple is waiting to see what VA will offer as a settlement.
In the meantime, the Fayetteville medical center has hired a new chief pathologist who will start work in September.
The Washington Post's Alice Crites and Jennifer Jenkins in Washington, and Bonnie Jo Mount in Fayetteville, Arkansas, contributed to this report.