AEGiS-Miami Herald: First VA colonoscopy case goes to trial after Miami vet contracted hepatitis C Miami HeraldImportant note: Information in this article was accurate in 2011. The state of the art may have changed since the publication date.
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First VA colonoscopy case goes to trial after Miami vet contracted hepatitis C

Miami Herald - July 10, 2011
Fred Tasker, ftasker@MiamiHerald.com


A Coral Gables veteran who filed a $30 million medical malpractice lawsuit charging that an improper colonoscopy at the Miami Veterans' Administration hospital gave him life-threatening hepatitis C heads to Miami federal court Monday in the first of what could be dozens of similar trials.

More than 11,000 U.S. veterans received colonoscopies with improperly cleaned equipment at VA hospitals in Miami, Murfreesboro, Tenn., and Augusta, Ga., between 2004 and 2009. Of the veterans who had the procedure at the three facilities, five have tested positive for HIV, 25 for hepatitis C and eight for hepatitis B. In Miami, 11 additional suits charging emotional distress have been settled out of court for undisclosed amounts, the U.S. Attorney's office said. Nine malpractice suits have been filed in Tennessee. Officials in Georgia couldn't say how many have been filed there. None has gone to trial until now.

Robert Metzler, now 69, a U.S. Air Force veteran, says he got a colonoscopy at the Miami VA hospital in 2007 and two years later was told he has hepatitis C.

"He feels terrible about it," said Ervin A. Gonzalez of Coral Gables, Metzler's attorney. "He always took great care of himself. He ran, swam, ate healthy so he could have a good quality of life, and now he ends up with a serious health problem."

Metzler's medical malpractice suit against the VA asks for $20 million for him and $10 million for his wife, Lucy Ann, for loss of consortium. It's set to go before U.S. District Judge Adalberto Jordan.

Miami Assistant U.S. Attorney Lawrence Rosen, who's defending the VA, declined to comment on the case. Court documents he filed in the case acknowledge the VA "breached" a "duty of reasonable care" with the vets by using improperly cleaned equipment, but deny the equipment caused the health problems.

In another Miami VA colonoscopy case settled out of court in March, the plaintiff's lawyer says the VA tracked down his client's ex-girlfriend from 10 years earlier to see if she -- rather than the VA equipment -- might have been the source of his HIV.

"They don't want to open the floodgates and take responsibility for every one of the veterans who may or may not have been infected by their procedures," contends Alexander Perkins, the plaintiff's lawyer in that case.

The lawsuits were filed after a 2009 investigation by the VA's own Administrative Investigation Board revealed more than 11,000 colonoscopies were done at three VA hospitals using equipment that had been rinsed after each patient rather than being sterilized by steam and chemicals as called for by the manufacturer. Investigators who took apart water tubes on some of the equipment that was supposed to be clean and ready for use instead found "discolored liquid and debris."

The AIB report said the colonoscopies in Miami were done in an environment of inadequate training, lack of supervision and inadequate communication.

In the case settled out of court in March, U.S. Army veteran Juan Rivera of Miami sued for medical malpractice when he became HIV positive after a colonoscopy at the Miami VA hospital. Rivera, who is single, had asked for $20 million. Neither side would reveal the size of the settlement in that case. Rosen represented the VA in that case as well as Metzler's.

Rivera is "doing OK, on antiviral drugs," Perkins says. The VA has promised lifetime care for all infected veterans, even if it can't be proved they were infected at the VA hospitals.

In the Metzler case, court papers filed by Rosen in April 2011 argue that the chances that the veteran contracted hepatitis C from the VA equipment are no more than "two in one trillion." Hepatitis C can't survive outside a human host for more than four days, the documents say, and "substantially more than four days had passed" between any previous patient with Hepatitis C who had a colonoscopy and the one performed on Metzler.

In the court papers, Rosen downplays the seriousness of the illness, asserting that Metzler "more likely than not will be completely cured of this infectionàThe plaintiff's current disease state is minimal, and liver function is normal. Experts agree that the medications becoming available will cure plaintiff of all symptoms."

Gonzalez, Metzler's lawyer, responds that the veteran has "fatigue, dry skin, insomnia, hot flashes. He has virus-like symptoms. He worries he may need a liver transplant or get cancer."

Metzler's case is based on the assertion that he had a blood test in August 2006 at the VA, with no sign of hepatitis C, Gonzalez said. His colonoscopy was in June 2007 and he was notified in March 2009 that he needed to come in to the VA for testing because the endoscope used in the procedure may have been contaminated, the lawyer said. A month later, he was told he was positive for hepatitis C.

Metzler, who is married and has three grown children, declined to be interviewed. He owns a Miami firm that sells machinery for repairing autos and trucks, Gonzalez said.

In Tennessee, Nashville lawyer Mike Sheppard filed suit for three veterans and filed notice of suit for 18 more treated at the VA hospital in Murfreesboro. One has HIV and 18 have hepatitis C or B. The U.S. Attorney's Office for that district says it has received notice of nine colonoscopy cases against the VA. A federal court has dismissed two cases, the VA has filed motions to dismiss in four others and has not yet responded to the remaining three cases, said Mark H. Wildasin, civil chief for the U.S. Attorney's Office in Nashville. No case has come to trial, he said.


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