VA Malpractice Lawsuit Filed Over Problems with Cancer Treatment

Medical malpractice lawsuits have been filed against the Philadelphia VA Medical Center, Dr. Gary Kao and the University of Pennsylvania by veterans who say they were the victims of botched radiation therapy by a rogue cancer unit at the VA hospital. 

The VA malpractice lawsuits were filed in federal court by Richard Mitchell, James Armstrong, John Berry, Barry Lackro and Donald Pepper, who all say Dr. Kao and his cancer unit provided substandard medical care while attempting to treat their cancer through a procedure known as brachytherapy. Lackro’s cancer has returned and become incurable. The men are just five of at least 98 veterans that investigators say received botched radiation treatments from Dr. Kao and his staff.

Last year, the U.S. Nuclear Regulatory Commission (NRC) began investigating the hospital’s cancer unit and Dr. Kao, and determined that of the 114 patients who received brachytherapy at the hospital under Dr. Kao, they only got the procedure right 16 times. Dr. Kao was removed from his position at the hospital in 2008 and the unit has been shut down.

Brachytherapy involves radioactive metal “seeds” which are placed in a pattern inside the prostate with needles. The metal seeds create a cloud of radiation that conforms to the prostate and is tailored to attack and contain the cancerous cells.

At the Philadelphia VA cancer unit, investigators have uncovered a number of incidents where patients received radiation doses that were too weak, or where the metal seeds were inserted into the wrong locations, such as the bladder or rectum. The unit continued to do the surgeries for a year, even after a device that measured the radiation in patients broke down, giving them no way to check their work.

Some of the errors were not found for years, and many veterans have had to undergo repeat implants or surgeries to mitigate damage caused by the VA cancer treatment problems in Philadelphia.

The NRC has found that there was no peer review, and that there were times when the staff in the cancer unit altered medical records to make it appear as though seed placement errors were actually part of the original medical plan. In May, the NRC fined the VA hospital $227,500.

Veterans first must file a claim with Veteran’s Affairs before filing a lawsuit. The VA then looks at the case and can approve or deny the claim. So far, the VA has rejected 12 of 38 claims, which seek a combined total of $71 million in compensatory damages. The veterans whose claims were rejected can file a federal lawsuit.

Those familiar with the lawsuits say that the University of Pennsylvania is likely to attempt to have itself removed from the lawsuits, but will face an uphill battle to do so. The University contracted with the VA medical center to conduct the cancer treatment program, and assigned Dr. Kao to head the unit. A report last month by VA inspectors found that the hospital also probably overpaid the university for its services.