FAYETTEVILLE, Ark. (KNWA/KFTA) — Members of Jerry Kolpek’s family testified in federal court on October 26 in a case against the Veterans Health Care System of the Ozarks, alleging that a Fayetteville VA Medical Center misdiagnosis in 2012 led to his death from cancer.

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.”

FILE – In this Aug. 17, 2019 file photo provided by the Washington County Sheriff’s Department, Robert Levy is pictured in a booking photo. (Washington County Sheriff’s Department via AP)

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.

He 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.

On Wednesday, Matt Lindsay, an attorney for Kolpek’s estate, called three of the man’s relatives as witnesses to testify about the pain and suffering that Kolpek endured and the negative effects his misdiagnosis had on the tight-knit Kolpek family.

First on the stand was Kolpek’s daughter, Kristie Whitehill, who was brought to tears when asked about the time she had to spend away from her father due to COVID-19 isolation protocols in effect near the end of Kolpek’s life in 2020. Difficulties with technology made it impossible to connect with him in the hospital via Zoom or Facetime, which were the only options presented.

“That was a lonely year for him,” she said before noting that her father had been looking forward to the upcoming release of COVID vaccines. She explained that his condition worsened in late December 2020 and they decided to honor his request to spend his final days with family by relocating him to a hospice facility to make him more comfortable.

She lamented the fact that his COVID isolation denied him many things he would have wanted, including holidays with his family and a full military funeral.

“Dad was taken from us,” she said. “He should be here today.”

She was also asked about a statement made by the defense during opening arguments that alluded to Kolpek’s death as being “normal.”

“There’s been nothing normal about this,” she declared. “He never did a pity party for himself. He was trying to be the bigger person.”

On cross-examination, government attorney Regan Hildebrand brought up points that he would repeat later on regarding the effect the death had on family members and whether Kolpek supported any of them financially. Whitehill also confirmed that her father responded well during his first year of cancer treatment.

The next plaintiff’s witness was Kolpek’s brother, Larry Kolpek, who appeared via a video deposition recorded on September 13. He acknowledged that travel to Arkansas would have been difficult due to his own health issues.

Lindsay’s questions explored the Kolpek family bonds in depth, with Larry, the middle brother at age 82, informing the court that they were “very close.” He recounted their time spent on the same sports teams, and how the victim took him to get a job with a railroad company the day after Larry’s high school graduation.

In later years, they enjoyed golf, fishing, and football games together, and he explained that the brothers had crafted a “Bucket List” of activities they planned to enjoy, including a Chicago-to-Reno train trip and another Super Bowl visit—if their beloved Minnesota Vikings were ever to return to The Big Game.

He became emotional when recounting his formerly-active older brother’s weakened condition at the end of his days.

“He couldn’t open a jar,” the witness stated. “Everything kept getting worse.”

Larry explained that his brother couldn’t fish, play golf or perform handyman duties for his daughter due to his cancer. He also described how his older brother broke his wrist in a fall.

Despite the pain, Kolpek made efforts to enjoy life and spend time with his family, including attending his grandchildren’s sporting events. Larry explained that he still feels grief about the loss of his brother “all the time.”

The final witness called to the stand was Kolpek’s son, Doug Kolpek, who touched on many of the same topics and sentiments. He discussed several family photos that had been blown up to poster size and submitted as evidence, including shots of the victim in his military uniform and spending time with his family.

The Kolpek family

He also became emotional when discussing his father, including his 44-year career as a railroad engineer.

“I help the boys get what they deserve,” he quoted his father as saying regarding his duties as a Union Chairman. He continued by recounting many more enjoyable memories of his father, ranging from football tailgates to his father joyfully attending a concert by Doug’s rock band and joining them for a post-show 4 a.m. breakfast.

“Everything about him is in me,” Doug said. “He was more like a buddy to me.”

He voiced regret at his father’s uncompleted Bucket List, then his demeanor changed when questioned about Dr. Levy.

“It just seemed unbelievable,” he said of the scope of the misdiagnoses. “I see a system that’s supposed to help people that failed them.”

He then testified about his and his family’s reluctant acceptance of his father’s condition when saddled with stage four cancer.

“This is our new life now,” he said of that time. “Quite frankly, it was horrible.”

He also took issue with the government’s assertion that it was a normal death, and responded succinctly and clearly when asked about it.

“There’s just nothing normal about how we’re grieving,” he stated. “The fact that we’re in this courtroom today is not normal. You don’t get to say how it feels.”

A brief-cross examination touched on nearly identical questions as those posed to the witness’ sister, with Doug confirming that he did not seek medical attention for anxiety or depression following his father’s death, but that he did deal with grief and guilt.

That concluded the plaintiff’s testimony, and the government elected not to call any defense witnesses. After a brief recess, the sides presented their closing arguments, reiterating many of the same points they had already made.

Perhaps echoing the idea of Kolpek’s uncompleted Bucket List, attorney Alan Lane chose to assign the damages that the plaintiffs sought into “buckets” of their own. He requested the following:

  • $3 million for Kolpek’s loss of life
  • $4 million for pain and suffering
  • $4 million for mental anguish
  • $1.5 million for Doug Kolpek
  • $1.5 million for Kristie Whitehill
  • $500,000 each for Kolpek’s brothers, Larry and Lanny

That added up to a total of $15 million in damages requested. Judge Timothy L. Brooks questioned the choice to separate pain and suffering and mental anguish into ” single line-item” categories and noted that “double recovery” could be an issue.

“We are asking the court to consider the evidence,” Lane replied. “I believe that the pain and the suffering is different than the mental and emotional toll.”

Defense attorney Hildebrand began by calling the lawsuit “essentially a medical malpractice action” before adding that the government does not dispute the effect the misdiagnosis had on Kolpek and his family.

He added that the clearly close-knit family members “all testified credibly” and that the only thing in dispute was the potential amount of damages. He noted that the court cannot award any punitive damages by law, and can only rule for pain and suffering damages in an amount that is not “monstrous” or “shocking.”

“The case law is clear,” he added.

Hildebrand also sought to minimize the window of time to be considered for Kolpek’s pain and suffering. He asked the court to “consider all of the evidence and weigh it accordingly.”

Judge Brooks thanked the litigants for their collegiality, especially considering the unique circumstances of the case, and noted that it was rare to proceed to trial with so many stipulations agreed to by both parties. He announced that he would “reflect more on the evidence that has been received,” including Kolpek’s medical records, before issuing a written opinion.

He added that he hopes to submit his ruling “sooner rather than later” without providing any specific timeframe.