Five veterans sue University of Pennsylvania in radiation-therapy case


By Marie McCullough

Over the last year, the Philadelphia VA Medical Center has taken most of the public heat for a prostate-cancer-treatment program that went astray for six years, giving incorrect radiation doses to 97 out of 114 veterans.

Now, the University of Pennsylvania – which designed, staffed, and supervised the radiation program – is feeling the pressure. Five veterans who received substandard therapy have filed federal lawsuits against various university entities, including its hospital and health system.

That number may well grow because veterans who have sought compensation from the Department of Veterans Affairs can file a federal lawsuit six months afterward, or any time after a claim is denied. As of May, the VA has rejected 12 of 38 claims seeking $71 million in damages.

Donna Lee Jones, a Philadelphia lawyer representing three of the veterans suing in federal court, predicted “there’s going to be a battle” with Penn over whether it should be part of the case.

Added her partner, Michael Barrett: “We think there will be plenty of finger-pointing between the VA and Penn. . . . But Penn’s fingerprints are all over everything.”

Penn Medicine spokeswoman Susan Phillips said Friday that the university could not comment on pending litigation. For the last year, she has said Penn could not discuss the various federal and congressional inquiries that were under way.

Penn, which uses the VA Medical Center as a teaching hospital for its medical students, contracted with the VA to run the prostate-cancer treatment program, called brachytherapy. It involves implanting dozens of tiny radioactive seeds into the prostate gland to kill cancer cells over several months.

Brachytherapy is effective when done properly, but if too many seeds are misplaced, the cancer may be spared, healthy surrounding tissues may be damaged, or both.

Penn assigned radiation oncologist Gary Kao to head the VA brachytherapy program. Kao, who performed most of the improper seed implants, is also named in the federal lawsuits, along with the department. The five veterans who are suing Penn are Richard Mitchell, James Armstrong, John Berry, and Barry Lackro, all of Philadelphia, and Donald Pepper of Smyrna, Del.

Lackro’s cancer has recurred and become incurable, while Berry’s shows signs of recurrence, according to their court filings. All five men claim to suffer from radiation damage to their bladder, rectum, or other organs, as well as severe emotional distress.

Their lawsuits contend that Penn is liable for their injuries based on two established legal precedents: Hospitals are “vicariously” responsible for the medical negligence of doctors they employ, and hospitals that have inadequate policies, procedures, equipment, and oversight can be found guilty of corporate negligence.

Still, there are gray areas. For example, Lackro’s attorney, Mitchell Paul, said he agreed to drop Penn’s board of trustees from the lawsuit after university attorneys argued that the trustees were overseers who do not get involved in managing doctors.

Barrett and Jones, in contrast, said they would not drop the trustees from their three clients’ suits.

There is similar disagreement over whether Penn’s School of Medicine should be a defendant.

Up to now, Penn’s integral role in the VA brachytherapy program has been recognized but not penalized.

In May, the Nuclear Regulatory Commission, which oversees medical-radiation usage, levied a $227,500 fine against the Philadelphia VA – the NRC’s second-largest fine ever – citing a “total breakdown” in the program, safety procedures, and management.

In a separate report last month, the Veterans Affairs Inspector General’s Office said the Philadelphia VA’s contract with Penn was nonexistent or inadequate during the six years of the program. It also said the VA ended up overpaying for Penn’s services.

Public documents and testimony at hearings have shown that Penn hired, appointed, and in some cases trained the radiation oncologists, urologists, physicists, technicians, and the radiation-safety committee chair who worked at the VA.

“We think it was primarily the Hospital of the University of Pennsylvania running the show,” Jones said, “and the VA was just the shell.”

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