Lawsuits over VA care target Penn for first time

Over the past 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 heat. 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 VA can file a federal lawsuit six month later, or anytime after a claim is denied. So far, the VA has rejected 12 of 38 claims seeking $71 million in damages.

Donna Lee Jones, a Philadelphia attorney 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, attorney Michael Barrett, "We think there will be plenty of finger-pointing between the VA and Penn trustees. But Penn's fingerprints are all over everything."

Penn spokeswoman Susan Phillips said Friday the university could not comment on pending litigation. For the past year, she had said Penn could not comment on the various federal and Congressional inquiries that were underway.

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, or 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 of Veterans Affairs.The five veterans who are suing Penn are Richard Mitchell, James Armstrong, John Berry, Barry Lackro, all of Philadelphia, and Donald Pepper of Smyrna, Del.

Lackro's cancer has recurred and become incurable, while Berry has 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 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 Penn attornies argued that the trustees are overseers who don't get involved in managing doctors.

Attornies Barrett and Jones, in contrast, said they will 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 Department of Veterans Affairs Inspector General's office said the Philadelphia VA's contract with Penn was non-existent 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 it was Penn who hired, appointed - and in some case, trained - the radiation oncologists, urologists, physicists, technicians, and radiation safety committee chair who worked at the VA.

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