Lawsuit says VA caused vet’s suicide
Claim: Misdiagnosis led Phoenix man to kill self
The lawsuit says U.S. Army veteran Gene Spencer was at the Phoenix VA Medical Center on Oct. 5, 2012, when a physician told him cancer had metastasized in his lungs and he should go home to prepare for the end.
Three days passed, according to the complaint, before the 67-year-old husband, writer, audiologist, building contractor and dog lover used a gun to take his own life.
One day after that, Spencer’s wife, Shirley Fobke, says, she received a phone call from the hospital notifying her of good news: There was an error in
the diagnosis, and Spencer was not about to die.
Those are the key allegations in a wrongfuldeath action filed April 30 with the U.S. District Court in Phoenix, seeking damages from the VA on behalf of Spencer’s widow.
“As a result of the misdiagnosis,” says the suit, “Shirley Fobke suffered and will continue to suffer emotional and economic injury, lost wages, lost opportunity for financial gain, future earning capacity, loss of consortium, loss of love and affection.”
In a recent interview with The Arizona Republic, Fobke said her husband was “a big-hearted, loving, caring man who was very charismatic. ... It just wasn’t right. He deserved better than what they did to him.”
Because of the litigation, officials at the Phoenix VA Health Care System declined to comment except to offer condolences.
The circumstances leading to Spencer’s death are listed antiseptically in the court complaint, but the impact is described with anguished detail in an earlier letter of claim submitted to the VA hospital.
According to that letter, the alleged misdiagnosis was one of many failures Spencer experienced in a VA health-care system that has been under fire for the past year over mismanagement, delayed care and falsified records.
The claim letter, written on Fobke’s behalf by former U.S. Attorney Jose de Jesus Rivera, contains an intimate account of Spencer’s life, loves and accomplishments.
Spencer was a Phoenix native who graduated from Central High School, earned a bachelor’s degree at Arizona State University and a master’s degree in audiology at the University of Arizona. He was drafted into the Army medical corps in 1968 and served two years.
The claim letter portrays Spencer as a passionate and devoted husband who “wrote his wife a love letter or poem almost every day,” adding, “Shirley adored and saved every love note.”
During her interview, Fobke said the messages live on as reminders: “I’ll open a book and find one of his little notes for me. He’d call me the perfect wife. I know I’m not perfect. But for him I was, and he was for me.”
Spencer worked as an audiologist on Arizona Indian reservations in his first career, then became a Phoenix construction contractor. The claim letter says he and his brother, Charles, erected more than 3,500 buildings statewide, including the original 5 & Diner restaurant in Phoenix and an Arizona Public Service Co. building in Scottsdale.
The legal papers say Spencer was diagnosed with colon cancer in 2010 and had a life expectancy of five to six years with proper treatment. While undergoing treatment, the claim alleges, Spencer received “too much radia- tion that caused lung problems and his immune system to be deficient.”
The letter says Fobke struggled to schedule doctor visits, and Spencer repeatedly wound up in the emergency room at Carl T. Hayden VA Medical Center because no appointment slots were open.
In 2011, Fobke said, the colon problems became so agonizing that Spencer tried to walk into a VA pain clinic but was sent home because he didn’t have a referral from his primary-care doctor. “He was curled up in the fetal position in the backyard,” she recalled, “and he had a gun with him.”
Fobke said her husband had been given a prognosis of three to five years, so they drew up a bucket list. By 2012, the big dream was a vacation together in Hawaii.
Just one day before the planned trip, Spencer was admitted to the VA medical center with shortness of breath. During a procedure to remove excess fluids, the claim letter says, a surgeon punctured Spencer’s lung, “allowing fluid to flow into the lung.” The doctor allegedly informed Spencer that he “made a mistake” and would have to perform a second operation, according to the legal claim.
One day later, the letter says, Spencer and Fobke were advised that adenocarcinoma had metastasized in Spencer’s lungs and “nothing more would be done in the way of treatment. ... (The doctor) told them to go home and get his final affairs in order. At best, Gene would have a few weeks to live.”
“He was in pain that entire weekend,” Fobke recalled during her interview. “He kept apologizing because he thought we had so much more time, and he was leaving me with a Great Dane puppy.”
Fobke said her husband had witnessed a friend’s suffering from terminal cancer. He chose a different path on Oct. 8, 2012: “When I came home from an errand, the front door was wide open,” Fobke recalled, weeping. “I called for him. I looked down the hall, and there was a bloodstain.”
Fobke said she dialed 911 and later notified the VA hospital that her husband would not make his next chemotherapy appointment because he was deceased.
One day passed, Fobke said, and the surgeon called to say, “‘Mrs. Spencer, I have such great news for you. ... That fluid around the lungs is not cancer.’ I said, ‘Well, if you looked at your files you’d know he died yesterday.’ ”
Fobke’s claim letter, sent to the VA in July, sought $2.5 million. It was denied.
Legal experts say wrongful-death complaints based on suicide are difficult because the deceased person caused his or her own demise, and other parties usually could not foresee that outcome. However, some malpractice claims have succeeded, especially in mental-health cases, where suicide was a predictable outcome of negligence.
Plaintiffs in some states may also successfully argue liability by asserting that medical malpractice produced an “uncontrolled impulse” resulting in suicide.
The legal claim filed on Fobke’s behalf says of Spencer, “He was not going to die. ... This negligent conduct by the doctors proximately caused an insanity that made it impossible for Gene to resist the impulse to end his own life.”
Colin Dunn, a Chicago attorney who has written on the topic, said courts are unlikely to hold doctors liable for suicide if they could not have foreseen the outcome. “That, to me, is a tougher case,” he said. “A court would have a hard time going that far.”