Family of Legionnaires' victim files civil claim, believes VA gave improper care
April 21, 2013 12:00 PM
By Sean D. Hamill Pittsburgh Post-Gazette
There's a telling discovery among the 2,800 pages of medical records obtained recently by the family of the first veteran to die during the Legionnaires' disease outbreak at Pittsburgh Veterans' Affairs' facilities.
VA doctors for John Ciarolla, 83, a Navy veteran from North Versailles, knew he had some form of pneumonia on June 27, 2011, and began treating him that day with general antibiotics. For part of that first day they even put him on additional antibiotics effective in killing the Legionella bacteria, but then stopped that latter treatment, the records show.
Ciarolla didn't get the kind of consistent, targeted antibiotics shown to kill the Legionella bacteria until four days later -- July 1 -- after a urine antigen test was finally done that confirmed that he had Legionnaires' disease.
Legionnaires' victim talks to family two weeks before his death
Kathy Neumann, daughter of veteran John Ciarolla, 83, took video of him on July 2, 2011, at the Pittsburgh VA's University Drive hospital, just days after the VA confirmed he had contracted Legionnaires' disease. He died July 18. (4/21/2013)
That delay, as well as alleged problems with the maintenance of the VA's water systems that contained the Legionella bacteria, led the family to file a civil claim form April 12 against the U.S. Department of Veterans Affairs.
"Mr. Ciarolla was injured fatally as a result of the negligence and breaches of VA Pittsburgh Healthcare System in exposing him to the virus through their failures to maintain and/or inspect their water supply system and/or failing to properly diagnose and treat him," the claim form reads, in part.
Legionnaires' experts agree that because the disease is so fast-acting and potentially lethal, particularly for elderly, hospitalized patients, one of the most important parts of treatment is getting the patient the proper antibiotics as quickly as possible -- which is also the Pittsburgh VA's policy.
"But they did not give him the right antibiotics until the urine test comes back and he ended up dying," said John Zervanos, the attorney representing Mr. Ciarolla's four adult children. "Can I prove that if they had given him the right antibiotics three or four days earlier that he would have lived? No. But we know you need to get Legionnaires' patients the right antibiotics as soon as possible. His best chance of survival was if he had been on the right drug all of the time after he contracted Legionnaires, and we believe if he had been on the drug with consistent doses he would have lived."
The family asks for $5 million for personal injury and $5 million for wrongful death, for a total $10 million claim.
The filing makes the Ciarollas the second family known to have filed a civil claim as a result of the outbreak, which sickened 21 veterans in 2011 and 2012 and killed five of them. The family of William Nicklas, 87, of Hampton, the last of the veterans to die during the outbreak, filed a civil claim with the VA in December.
The civil claim the Ciarollas filed is known as a Form 95. The federal government requires people to submit it before a formal lawsuit is filed. After filing it, the federal government has six months to investigate and respond and/or settle the claim before any lawsuit can be filed in U.S. District Court.
The family decided to pursue legal action against the VA "basically because we're just devastated, and have been since day one, by how this whole thing was handled," said Maureen Ciarolla, John Ciarolla's daughter who lives in Monroeville.
Questioning the VA's 'standard of care'
John Ciarolla began living at the Pittsburgh VA's H.J. Heinz nursing home near Aspinwall in the spring of 2011 because of complications with his diabetes and because he had broken his hips and was having trouble caring for himself.
He was admitted to the VA's University Drive hospital in Oakland on June 27 with a fever and disorientation, and was diagnosed that day with pneumonia.
Mr. Zervanos said that based on the medical records, it is the type of drugs, and their duration of use, that Ciarolla got over the next week that brings into question the VA's "standard of care."
VA spokesman Dave Cowgill would not respond to questions about Ciarolla's case, citing privacy concerns.
In an email he described the VA's policy on the treatment of pneumonia: "Upon diagnosis of pneumonia, VAPHS clinicians are expected to ensure that proper antibiotic treatment be administered promptly, without delay. In fact, timely initiation of antibiotic therapy for a patient with pneumonia is tracked as a quality metric."
"While diagnostic testing is required as clinically or epidemiologically necessary to identify a specific pathogen, clinical guidelines do not recommend deferring or delaying antibiotic therapy for all diagnostic testing results to be confirmed. Typical recommended empiric antibiotic regimens for pneumonia would include an antibiotic that would be effective in treating pneumonia caused by Legionella species," he added. "Additional antibiotics would be added to the regimen based on whether or not the pneumonia would be health care associated."
In a memo sent by the Pittsburgh VA's chief of staff, Ali Sonel, to the VA staff about the early detection of Legionella in the water system on Sept. 13, 2011 -- two months after Ciarolla died -- he noted that if Legionnaires' is found in patients: "Appropriate therapy for Legionella is either a macrolide (azithromycin, clarithromycin) or a fluoroquinolone (moxifloxacin, ciprofloxacin)."
Ciarolla's medical records show that he was put on "broad spectrum," intravenous, antibiotics on June 27 for at least two days. For part of June 27, he was also put on moxifloxacin and ciprofloxacin, but then taken off both drugs that have been shown to be effective in treating Legionnaires', Mr. Zervanos said the records show.
A day later, June, 28, doctors ordered a urine antigen test to see if he had Legionnaires' and the sample went to the Pittsburgh VA's laboratory which then was using a batch testing system.
Using the batch system meant that instead of getting one patient's test result done in less than an hour -- which can be done with such a test -- the VA laboratory would wait several days until it had received five or more patients' samples before performing the tests all at once as a way to save employees' time. The VA stopped using batch testing last fall when it realized it had an outbreak of Legionnaires'. It now tests urine samples immediately.
Because of the delay in getting results under the batch system, Ciarolla's doctors did not learn he had Legionnaires' until July 1, 2011, three days after the test was ordered.
At that point doctors began administering azithromycin, a drug many experts believe is among the two best at treating Legionnaires'.
To Mr. Zervanos, that is the most telling fact of all.
"If you already have stuff you're using that covers [treatment of Legionnaires'] why change it? That will be my argument," he said.
'They didn't do what they should have'
Last month, Ciarolla's family and Mr. Zervanos met with Pittsburgh VA officials as part of the "disclosure meetings" the VA has been offering to the patients or families of the victims of the outbreak to answer their questions about their cases.
During that meeting, Mr. Zervanos asked Dr. Sonel why doctors waited to give Mr. Ciarolla the right antibiotics until after the urine antigen test came back, and not when he was first admitted and diagnosed with pneumonia.
Mr. Zervanos said Dr. Sonel replied that "[y]ou can create more problems with antibiotic therapy than you solve."
"That's true," Mr. Zervanos said. "But only if you're on it for a long period of time, not for two or three days. They just didn't do what they should have."
Equally troubling to the Ciarolla family is that even though VA records show that John Ciarolla was diagnosed with Legionnaires' on July 1, no one in the family was told about that until two days later.
During a family visit to see Ciarolla at University Drive on July 2, his doctors told his daughters that they had put Ciarolla on antibiotics -- "But they said it was just for a respiratory problem," Maureen Ciarolla said, and never mentioned Legionnaires.
Part of that July 2 visit was captured in a short video by another of Ciarolla's daughters, Kathy Neumann, who is heard on the video saying that her father is "doing much better, lungs are much clearer than they were this morning. Antibiotics are working."
But on July 3, when Ciarolla appeared to be improving, Ms. Ciarolla said he was sent back to the Heinz nursing home. Later that same day she got a call saying his condition deteriorated quickly and he was sent back to University Drive. She found him in the emergency room there.
An emergency room doctor, whose name Ms. Ciarolla can't recall, pulled her aside and asked her to wait until he was free so he could talk to her about her father. When he was finally available, he told her that her father had Legionnaires'.
"He was concerned but also seemed like he was telling me something he shouldn't," Ms. Ciarolla said.
Two days later, John Ciarolla was placed on a ventilator.
"When we asked what happened to him when he was on the ventilator, they said it wasn't because of the Legionnaires because they had cleared it up," Ms. Ciarolla said.
He never came off the ventilator before he died on July 18.
In the end, when Ms. Ciarolla asked her father's doctor, Gilles Clermont, whether they would do an autopsy, she said he replied: "No. We know what he died of."
Dr. Clermont, who did not return a call seeking comment, ruled on Ciarolla's death certificate that the primary cause of death was "septic shock" with "pneumonia" listed as the underlying cause -- but no mention of Legionnaires'.
Clarification, posted April 21, 2013:This version has been updated to provide a complete quote from John Zervanos, the attorney representing the Ciarolla family, in the seventh paragraph, which begins "But they did not give him the right antibiotics ..."