FAYETTEVILLE, Ark. (KNWA/KFTA) — Just one day after emotional testimony from his family, the estate of Jerry Kolpek was awarded over $4.7 million after a Fayetteville VA Medical Center misdiagnosis in 2012 led to his death from cancer.
Judge Timothy L. Brooks issued the opinion on October 27, breaking up the awarding of damages as follows:
- Jerry Kolpek’s estate: $4,005,061.80
- His son, Douglas Kolpek: $300,000
- His daughter, Kristie Whitehill: $300,000
- His brother, Larry Kolpek: $60,000
- His brother, Lanny Kolpek: $50,000
The plaintiffs had requested a total of $15 million in damages for loss of life, pain and suffering, and mental anguish for Kolpek and his family members.
The Court finds Mr. Kolpek was highly credible, humble, and honorable throughout the investigative interviews. Mentally, he was angered by Dr. Levy’s criminal conduct and the suffering it brought to both him and other veteran patients. Nevertheless, Mr. Kolpek was respectful and appreciative of his VA doctors in Des Moines and maintained his support for the VA. Mr. Kolpek gave an accurate account of his life story and current plight.
If anything, he tended to downplay and deflect his personal adversities that resulted from the final hand he had been wrongly dealt. Defendant’s assessment appears similar. Its counsel stated in closing argument that, ‘Mr. Kolpek testified honestly and openly about the cancer misdiagnosis, the impact it had on him, relationship with his family, and his background.’Judge Timothy L. Brooks, October 27 opinion
Judge Brooks also noted that Kolpek was “attentive to his own health” and “placed great value on extending his life and was willing to do whatever his doctors recommended to do so.”
The judge also commented that Kolpek was required to take painkillers “on a daily basis” and that his disease and limitations caused him “grief and distress.” He noted that this took a significant toll in the final year of Kolpek’s life.
The opinion states that all parties “agree on all applicable damages law,” including the fact that no punitive damages could be included. The dispute was solely over the amount of compensatory damages due to Kolpek’s estate and beneficiaries.
The filing also explained the Arkansas law involved in loss-of-life damage awards as well as pain, suffering, and mental anguish. The ruling also listed over a dozen factors that Arkansas courts look at to determine beneficiaries’ mental anguish damages.
The court calculated the loss of life damages at $1.6 million and the pain, suffering and mental anguish damages at $2.4 million. There was also an award of $5,061.80 to cover Kolpek’s funeral expenses.
The lawsuit was filed in 2021 by Kolpek’s son, Doug Kolpek, on behalf of his father’s estate. That complaint stated that his father’s “personal injuries and ultimate death were proximately caused by the negligence, medical malpractice, wrongful acts and/or omissions of employees of the Fayetteville VA.”
Kolpek, a Korean War veteran, presented signs of prostate cancer as diagnosed by his primary care physician in 2012. He underwent a biopsy and those materials were sent to VA Pathologist Dr. Robert Levy for examination and diagnosis.
According to court documents, Dr. Levy reviewed the pathology materials taken from Kolpek and “incorrectly found the prostatic tissues to be benign.” The Central Arkansas VA director later testified that Kolpek’s diagnosis was “not difficult,” that tumors were present in “multiple locations” and that Dr. Levy had missed the presence of cancer in “multiple biopsy slides.”
The Western District of Arkansas Federal Court in Fayetteville found that Dr. Levy misdiagnosed hundreds of patients during his tenure there from 2005-2018. He was found to be impaired at work several times, according to court documents, and was fired after an arrest for driving under the influence of alcohol.
Levy was sentenced to 20 years in prison for involuntary manslaughter and mail fraud in January 2021. Kolpek, 83, passed away from stage four cancer just weeks before Levy’s sentencing.