Army veteran files lawsuit alleging VA computer system delayed cancer diagnosis
The Spokesman-Review December 5, 2023
(Tribune News Service) — A veteran and his wife are suing the federal government and the companies behind a computer system the Department of Veterans Affairs has tested in Spokane, alleging that flaws in the system delayed the diagnosis of cancer that became terminal before it could be treated.
Charlie Bourg and his wife, Deborah Brinson, filed the lawsuit in the U.S. District Court for the Eastern District of Washington on Friday. They are seeking unspecified monetary damages from the government and the companies that have developed the electronic health record system — including Cerner, to which the VA awarded a $10 billion contract in 2018, and Oracle, which acquired Cerner for $28.3 billion in 2022.
Bourg, a vocal critic of the system who went to the U.S. Capitol in December 2022 to ask Congress to scrap it, said he blames the government and the companies that brought the system to Spokane’s Mann-Grandstaff VA Medical Center, not the doctors and nurses who use the system to track patient data and coordinate care. Bourg has been told his prostate cancer has spread and is no longer treatable.
“Everybody at the hospital has been good to me, except for the administration,” he said. “They tried to do everything right — whether the urologists, the primary care, the oncologists — and they’ve all suffered from this program, too, along with the rest of the staff there.”
After the Obama administration gave Cerner a $4.3 billion contract in 2015 to adopt the company’s system in military hospitals, the Trump administration did the same for VA hospitals in 2018 despite the VA’s existing system being popular among health care workers. Officials in both the Trump and Biden administrations have maintained that using the same system will help the two departments coordinate care more effectively.
The Pentagon and the VA chose Spokane as the pilot site for both rollouts, launching the system at Fairchild Air Force Base in February 2017 and at Mann-Grandstaff in October 2020.
Soon after the system arrived at the Spokane VA hospital, according to the lawsuit, Bourg had a routine blood test in December 2020 that showed signs of possible prostate cancer. His primary care provider sent a message through the new system to a urology specialist, who opened the message a day later and placed a “return to clinic” order to schedule a follow-up appointment.
The lawsuit alleges that a “system defect” caused the order to “route to a massive unorganized queue and essentially disappear,” so the urology clinic didn’t schedule a follow-up. The next time Bourg saw his primary care provider, in April 2021, they realized what had happened and the provider sent another order to schedule an appointment in early May.
While that order went to the correct recipient, a different system defect allegedly changed the date of the appointment to September 2021 — four months later than ordered, Bourg later learned when he asked his provider what happened. When he saw a urologist and had a biopsy in October 2021, he was diagnosed with prostate cancer.
After a surgery to remove his prostate in January 2022, doctors told Bourg the cancer had spread to other parts of his body and was no longer treatable. A year ago, he said, doctors told him he likely had between one and two years to live.
Bourg’s and Brinson’s attorney, Mark Kamitomo, said he expects the case to take more than a year, and Bourg said he understands he may not live to see its conclusion. He hopes the court will award damages that he could leave to his wife, children and grandchildren and to a local veterans’ group.
“I’m just playing it by ear,” Bourg said. “There’s not much I can do. Just keep fighting for veterans’ care and for my family.”
The facts of Bourg’s case were described in a June 2022 letter from Mann-Grandstaff Director Robert Fischer to Sen. Patty Murray, D-Wash., whose office had requested an investigation on Bourg’s behalf.
After the system was rolled out at five hospitals in the Northwest and Ohio, the VA delayed planned launches at larger facilities in Seattle, Portland, Boise and elsewhere when The Spokesman-Review reported in June 2022 that the system had contributed to nearly 150 cases of harm that senior VA officials had not disclosed to Congress or the public.
As of July, the system had contributed to more than 4,400 cases of patient harm, according to data obtained by The Spokesman-Review via the Freedom of Information Act. While the VA classifies most of those cases as “minor,” they also include 885 cases of “moderate” harm, 44 cases of “major” harm and nine cases of “catastrophic” harm.
The VA defines minor harm as not causing injury or requiring additional care and moderate harm as increasing the length of stay or level of care needed for one or two patients. Major harm entails permanent loss of bodily function, disfigurement, a problem that requires surgical intervention, or that requires a longer hospital stay or higher level of care for at least three patients.
Death or major permanent loss of function constitute catastrophic harm by the VA’s definition. In March, the department acknowledged that the system had contributed to the deaths of four veterans.
Bourg and Brinson each filed a tort claim with the VA in December 2022 and are eligible to sue the government under the Federal Tort Claims Act because the department didn’t resolve that claim within six months, according to court documents.
The tort claims asked for $15 million in damages. Kamitomo, an attorney with the Seattle- and Spokane-based Luvera Law Firm, said a court could award higher damages from the companies named as defendants.
After its acquisition by Oracle, Cerner was known as Oracle Cerner and was recently rebranded as Oracle Health. The lawsuit names several Cerner subsidiaries and “unknown John Does” as defendants, partly to account for those name changes.
In their complaint, Bourg and Brinson accuse the U.S. government of negligence and failing “to exercise reasonable care” in the implementation of the new system. They allege that the companies that developed the system failed to design and manufacture a “reasonably safe” product, and failed to adequately train users how to safely use it.
“The medical providers in this case were doing the right thing,” Kamitomo said. “They were doing what they were supposed to do. And they put their faith in a system that Cerner and the VA rushed to get out without adequately testing, and that’s why we’re going after Cerner and the VA.”
Kamitomo said he expects Oracle to argue that it is not liable for how the system affected Bourg’s care, because the tech giant finalized its deal to acquire Cerner in June 2022.
In September 2022, an Oracle spokesman told The Spokesman-Review the company had looked into what happened in Bourg’s case and concluded that its system was not responsible, while calling the situation “tragic.”
“Our findings show that nothing related to the EHR’s functionality or performance had anything to do with the care this veteran received and was unrelated to their diagnosis or treatment,” Oracle spokesman Michael Egbert said in a statement at the time, using the acronym for electronic health record. “The Oracle Cerner EHR is successfully in use at many thousands of health care facilities across the United States without incident.”
Oracle Cerner — now Oracle Health — controls roughly 25% of the electronic health record market, according to the market research firm KLAS. But in the wake of layoffs following the acquisition, some large hospital systems have announced plans to switch to a different system.
That didn’t stop Oracle Health chairman David Feinberg — who called the acquisition “a wild success story” — from buying a $19 million Los Angeles penthouse from pop star The Weeknd in August, shortly after the layoffs were reported.
In May, the VA and Oracle agreed on a modified contract with added accountability measures to continue developing the system, which is scheduled to launch at a joint VA-Defense Department hospital in Chicago in March.
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