Attorneys: Pittsburgh VA failed to disclose Legionella bacteria hazards
By Adam Smeltz
Published: Thursday, Feb. 7, 2013, 11:48 p.m.
Embattled Pittsburgh VA officials might have broken federal rules by not telling pneumonia patients or their survivors that Legionella bacteria in the Oakland hospital had sickened patients, lawyers said on Thursday.
“I think they really would have had the obligation, potentially, to notify anybody who was hospitalized there, particularly anyone in the transplant facility,” said W. Robb Graham, a Cherry Hill, N.J., attorney who specializes in VA malpractice cases and is not involved in the Pittsburgh VA cases. “I would think they would be obligated to disclose to all inpatients” the exposure risk.
Tap water in VA hospitals in Oakland and O'Hara is suspected of sickening at least 21 veterans with Legionnaires' pneumonia since January 2011. Five have died.
“We have made disclosures to all affected patients or their representatives,” Pittsburgh VA spokesman David Cowgill wrote in an email.
He would not say whether every pneumonia patient hospitalized or treated in the Oakland and O'Hara hospitals since 2011 had been alerted.
The Centers for Disease Control and Prevention in Atlanta told Pittsburgh VA officials on Oct. 30, 2012, that the water was causing Legionnaires' cases, the VA administrator, Dr. Robert L. Jesse, told a congressional subcommittee this week.
That should have triggered immediate notifications to past and current pneumonia patients in accordance with a national VA policy for disclosing hazardous hospital conditions, analysts monitoring the case said. The policy mandates formal disclosures to patients or their survivors when “occurrences of harm or potential harm” in the hospital endanger veterans' health.
Officials have not released names of patients the CDC identified as contracting or dying from Legionnaires' disease.
Lawyers representing the families of two deceased veterans said they received no formal communication from the VA about the discovery of Legionella — in apparent violation of the disclosure standards.
The office of VA Inspector General George J. Opfer will look into disclosure compliance as part of its ongoing review, spokeswoman Catherine Gromek said. A congressional investigation is under way as well.
The precise threat “should have been disclosed to anyone who may have had Legionella exposure,” said Philadelphia attorney John N. Zervanos, who represents the family of the late John Ciarolla, 83, of North Versailles.
After Ciarolla was admitted to the Oakland hospital, a VA doctor advised his family that he was infected with the Legionella bacteria, Zervanos said. Ciarolla's death from pneumonia in the hospital in July 2011 led relatives to believe he had been exposed to Legionella there.
Zervanos said he had “no information to indicate” the hospital staff told the family the bacteria infecting Ciarolla originated in the hospital.
“I believe they (VA officials) were concerned about Legionella as early as, potentially, the spring of 2011,” Zervanos said. “I think anybody who was treated for pneumonia at the very least should have been advised. I don't think you need to be contacting every patient who was in there if they don't have evidence of pneumonia or lung issues. But I think if you had a lung problem, you should have been advised by the VA.”
Downtown-based attorney Harry S. Cohen said he sees “a clear violation” of VA disclosure standards. His firm represents the family of veteran William E. Nicklas of Hampton, who died of Legionnaires' disease in November in the Oakland VA.
The family has announced plans to sue.
“Not only were the Nicklases not notified pursuant to the statute — Mrs. Nicklas was contacted in an attempt to intimidate her from pursuing her legal rights” to sue, Cohen said, declining to elaborate.
“They certainly received information through informal or confidential measures that there was an awareness of this ongoing problem,” Cohen said.
Cowgill would not respond to the claim of intimidation because of the pending legal action.
Cohen said blatant violations of the transparency standards warrant “stiff sanctions imposed on individuals who are responsible for the violation.”
Graham, the New Jersey attorney, said VA officials would determine punishment of any infraction. Gromek would not comment on possible sanctions.
Having combed through many years of VA inspector general reports, Graham said, he could not recall any disciplinary action stemming from disclosure violations.
“In my experience, I don't think anyone is seriously penalized at any VA hospital for not complying with this policy,” he said.
Adam Smeltz is a staff writer for Trib Total Media. He can be reached at 412-380-5676 or firstname.lastname@example.org.
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