MIAMI -- Air Force veteran Robert Metzler says his life is ruined. His attorney says Metzler faces a future of exhaustion, loss of sexual companionship and the threat of cirrhosis or liver cancer. But the lawyer defending the Veterans Administration says Metzler might be cured of the underlying condition, hepatitis C, within a year.
The sharply contrasting opening statements were presented in U.S. District Court in Miami in a medical malpractice case filed against the VA. It's the first such case to go to trial after about 11,000 U.S. military veterans learned that colonoscopies they had at three VA hospitals, including Miami's, were performed with improperly cleaned equipment.
"He's been scoped by a dirty scope," attorney Ervin Gonzalez said. "He has hepatitis C. It scars the liver, brings on insomnia, hot flashes and, in the end, for 5 percent, liver failure."
Assistant U.S. Attorney Lawrence Rosen, defending the VA, called it "almost scientifically impossible for the virus to be transmitted" in the time frame claimed by the plaintiff. He told U.S. District Judge Adalberto Jordan, who is presiding over the case, that he will produce medical experts to say the hepatitis C virus can live only three days in the human body and a day or less outside it, and the only other veteran to have been treated with that endoscope within that range of time has tested negative for the virus.
Rosen said he also will bring in experts to talk about new drugs that can cure Metzler's hepatitis C: "The older drugs build up your immune system to fight hepatitis. The new drugs stop the virus from replicating, kill the virus."
The plaintiff's first witness, Dr. Brian Clarke, a gastroenterologist trained at Indiana University, testified that new studies suggest the hepatitis virus might live longer outside the body than previously believed.
Gonzalez argued that the new drugs work only 70 to 80 percent of the time, and have side effects that can include suicidal or homicidal tendencies. He argued that Metzler, 69, who has been making up to $100,000 a year selling machinery for automotive maintenance, will lost $1 million in earnings and a probable loss of $1.5 million for selling his business early so he can take rigorous drug treatments. Metzler's suit asks for that amount plus $750,000 each for him and his wife for mental anguish.
"I feel terrible," Metzler said, during a break in the trial. "They've ruined my life."
The non-jury trial is expected to last about a week.
The VA lawyer didn't contest the idea that improperly cleaned equipment might have been used in colonoscopies at the VA hospitals in Miami, Murfreesboro, Tenn., and Augusta, Ga. That much was conceded in a report by the VA's Administrative Investigation Board in 2009. The investigation covered the period of 2004 and 2009 when the scopes were improperly used.
Gonzalez said Metzler tested negative for hepatitis in 2006, got the colonoscopy in 2007 and was told he has hepatitis C in 2009.
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