Claims against Phila. VA up to $58 million

Injured veterans and their spouses have filed 31 claims against the U.S. Department of Veterans Affairs for botched prostate cancer care at the Philadelphia VA Medical Center, internal records show.

Twenty-seven men who received prostate brachytherapy at the Philadelphia VA and four veterans' wives are seeking a total $58 million in damages for radiation errors at the hospital from 2002 to 2008, according to documents obtained by The Inquirer through a Freedom of Information Act request.

The government - and taxpayers - could be on the hook for far more, as fewer than a third of the 97 veterans who got incorrect radiation doses have filed claims so far.

Former Green Beret Barry Lackro of Philadelphia, who suffered rectal bleeding and had his prostate cancer return, said his $7 million claim was not about money but holding the VA accountable.

"It infuriates me that the VA could watch the health condition of veterans, knowing that their lives are made worse because of a botched surgery, and have the unmitigated gall to . . . do nothing," he said.

Richard S. Citron, director of the Philadelphia VA Medical Center, said that when the facility discovered the problems in June 2008, it notified all 114 veterans treated since the program opened in February 2002 that they could "file an administrative tort claim and request VA benefits."

The VA has also sent eight veterans to Seattle to redo the implants.

"I am confident that we are doing the right thing for our veterans, whether in terms of follow-up health care or helping them navigate the system," Citron said.

The brachytherapy program was shut down in June 2008. Citron has said there are no plans to restart it.

Prostate brachytherapy involves implanting dozens of tiny radioactive seeds into the acorn-size gland to kill cancerous cells over several months. It is an effective treatment when done correctly.

But records show the Philadelphia VA's program was deeply flawed from its earliest patients, and that doctors and officials repeatedly missed chances to correct it.

Lawmakers who have investigated the hospital have also faulted the VA's response after the scandal broke. Despite an internal probe recommending sanctions, the VA took more than a year to impose a three-day suspension on one doctor and send a letter of reprimand to the hospital's radiation safety officer.

The documents obtained by The Inquirer are heavily redacted, with all names and identifying information blacked out.

Still, the 31 claims represent a big number for a small program. The rest of the hospital - which gets about 50,000 inpatient and outpatient visits a year - has received a total of 44 malpractice claims since 2002, records show.

Such filings are the first step in pursuing malpractice suits against the VA. If the agency denies the claim or does not respond in six months, the veteran can file a lawsuit in federal court.

One man, seeking $10 million, wrote his claim, dated July 29, 2008, by hand. He said he had not been told the extent of his physical injuries. The harm "remains totally psychological and constant distress" from not knowing his prognosis, he said.

Another veteran seeking $1.5 million in compensation stated that his PSA level - a measure of blood protein that doctors use to identify prostate cancer - is "back up." He said he has undergone additional treatment, his sex life has been harmed, and he suffers stress, headaches, depression, and fatigue from the bad care he got at the VA.

Lawyers representing several of the veterans say the VA is dragging its feet in responding to the men.

W. Robb Graham, a lawyer in Cinnaminson, faulted the VA for failing to inform veterans whether they can pursue separate legal action against the University of Pennsylvania and Gary Kao, the Penn doctor who performed most of the substandard procedures. Penn does not appear to have been sued.

Graham said the VA has still not responded to his Freedom of Information request for the contracts with Penn, though he received assurances from a top VA official in June that the agency would provide him the information.

"The VA is just delaying, delaying, and hoping it will go away," said Graham, who represents several of the veterans including the Rev. Ricardo Flippin of Charleston, W. Va., who developed rectal bleeding and digestive problems after his May 2005 treatment at the Philadelphia VA.

A 68-year-old minister, teacher, and Air Force veteran who served in Vietnam, Flippin has been diagnosed with a radiation injury to his rectum by a doctor outside the VA system.

He underwent surgery to repair the damage, but he continues to have problems with bowel control.

Flippin's claim seeks up to $7.5 million for his injuries and the VA's failure to promptly report the mistakes and their effects.

The errors have spawned internal and external investigations, including an ongoing probe by the VA's Office of Inspector General.

In an inspection report issued last week, the U.S. Nuclear Regulatory Commission, which oversees the medical use of radioactive material, cited the VA for eight apparent violations.

The NRC found that the Philadelphia VA staff failed to evaluate radiation doses or know when to report a mistake. For example, the brachytherapy team failed to check radiation doses in patients for more than a year because a computer was unplugged from the hospital's network, the report said.

On Dec. 17, the NRC will hold a hearing before making a decision on what official action, if any, to take against the VA Medical Center in West Philadelphia. The VA could face sanctions ranging from a reprimand to a fine of tens of thousands of dollars.

But any fine by another agency is likely to pale beside the malpractice payments that the VA might face from injured veterans and their wives. The 31 claims so far are seeking amounts ranging from $100,000 to $10 million.

And veterans have seven more months, at least, to initiate cases and stay within the two-year statute of limitations because they weren't notified of the mistakes until June 2008.

Lackro, whose second tour in Vietnam was cut short after he was shot in the hip, got his implant in January 2005. By April, he was complaining of blood in his urine and stools, constipation, rectal pain, and urinary urgency and frequency, his records show.

Later, those complaints were referred to as "radiation proctitis and cystitis" - radiation irritation of the rectum and bladder. But none of his VA health-care doctors suggested his problems were caused by a bad implant, Lackro said.

He has since learned that his cancer has returned. He is taking medication to suppress hormone production, causing him to suffer hot flashes.

He said he still has to go to the bathroom "all the time." And he said he continues to bleed from his rectum, although hyperbaric treatment has reduced the amount of blood.

But the mental toll could be worse.

"I feel that I have been psychologically . . . raped by the VA," Lackro said. He is also "deeply offended as an officer" that the VA mistreated so many men who served their country in war over such a long period.

"This is about a group of my brothers," he said, "We upheld our end of the covenant."