Trinity challenges hepatitis outbreak allegations

Trinity, through its attorneys with Bakke Grinolds Wiederholt in Bismarck, filed its brief in response to an appeal brought by Mark Krebsbach, whose wife was among 52 identified victims in the outbreak uncovered in 2013. She had been a resident of ManorCare, which initially was targeted in a class action lawsuit filed in 2014 before plaintiffs focused on Trinity.

Trinity settled with victims and with ManorCare, which also sued. Only the Krebsbach complaint persists.

Krebsbach had brought a claim in 2016 alleging negligence, fraud and deceit and unlawful sales and advertising practices. Special Master Karen Klein ruled Krebsbach’s claim was outside the statute of limitations for malpractice in coming more than two years from the time he should have known he had a claim. North Central District Judge Todd Cresap upheld the decision, which was appealed to the Supreme Court.

Krebsbach has alleged the outbreak resulted from a Trinity phlebotomist reusing needles and drug diversion at the hospital.

Trinity counters that the North Dakota Department of Health and Centers for Disease Control investigation “did not reveal a single exposure or source that could explain all of the cases” but the “epidemiologic data shows that the outbreak likely resulted from breakdowns of proper infection control procedures” at ManorCare’s Minot facility. Trinity’s court brief states the health department found statistical association between hepatitis infection and patients’ receipt of wound care, nail care, phlebotomy services and podiatry care at ManorCare.

“Unfortunately, Krebsbach’s ‘statement of the facts’ provided a plethora of extraneous disparaging and conclusory allegations. It is replete with factual assertions that are unsubstantiated and/or demonstrably false,” Trinity wrote in its response. “We are unable to pass over these misleading and prejudicial statements in silence. To ensure the Court–and any other persons viewing this public record–are not left with a materially inaccurate view the circumstances giving rise to this Appeal, we write now to correct the record.

“Krebsbach recites a host of unsupported allegations in his Appellate Brief, apparently intended to convince the Court of Trinity’s wrongdoing. Virtually none of those recited facts have anything to do with the legal issues on appeal or with the care of Krystal Krebsbach,” Trinity stated. “Krebsbach talks in his Brief about alleged discovery violations that occurred before he was even a party to the litigation. While the allegations are once again unfounded and untrue, they have no bearing on Krebsbach, but are intended only to continue the character assassination that Krebsbach AND ManorCare’s counsel has continued against Trinity for several years.

“Krebsbach spends an inordinate amount of time discussing alleged failures on the part of Trinity as relates to phlebotomy. Once again, none of these relate to Mrs. Krebsbach. Instead, they are again a complete misrepresentation of testimony intended to create outrage out of conclusory allegations unsupported by fact. The fact remains that the CDC and DOH spent hundreds, if not thousands of hours, in hands-on analysis, interviews, records review, comparative analysis and study. They spent time at ManorCare and at Trinity, reviewing techniques, policies, and habits of employees. After that evaluation, they did not find that phlebotomy caused the outbreak. They did, however, find breaches of infection control that were noted in the CDC and DOH’s report that ‘could’ result in disease transmission. These were observations of ManorCare staff by CDC and DOH representatives, even when the ManorCare staff knew they were being watched and were presumably on their best behavior. Of course, Krebsbach could not have implicated ManorCare in his Complaint, despite the findings of the CDC and DOH, because his counsel represented BOTH Krebsbach and ManorCare at the same time during this litigation,” Trinity stated in the brief.

“There are explanations to each of the attempts by Krebsbach to inflate the allegations made,” the brief continued. “Krebsbach references a failure to disclose staff suspected of drug diversion that were not part of the time frame requested by the DOH or CDC in their investigation – some of them not even known at the time the requests were made. Most importantly, the CDC and DOH looked extensively at drug diversion as a possible cause and found no evidence leading to that conclusion.”

Trinity also was critical of findings of Krebsbach’s infectious disease expert, Dr. Mark Sulkowski of John Hopkins, noting Sulkowski never directed an actual investigation in Minot.

Trinity stated the claim of drug diversion causing the outbreak, as referenced by Sulkowski, is nothing more than acknowledging drug diversion as a common cause of a Hepatitis C outbreak and that drug diversion occurred at Trinity, as it does at all hospitals.

“The unsupported evidence by Krebsbach is woefully inadequate to establish causation to a reasonable medical certainty as required under North Dakota law,” Trinity stated.

Trinity also had offered two experts, one of whom worked with the CDC and both with significant experience in outbreak analysis.

Trinity supported the court’s interpretation of the two-year statute of limitations, stating phlebotomy is part of a professional medical service covered under the malpractice statute.

Trinity also argues there is no claim for fraud and deceit or unlawful sales because there was no misrepresentation or omission by Trinity that could have induced Krystal Krebsbach to accept phlebotomy services provided by Trinity at ManorCare. The law does not require disclosure of confidential personnel information, such as complaints in an employee’s file, to the public without a specific request for it or permission from the employee to disclose it, Trinity added. Rather, volunteering confidential information would violate common public policy principles of employee privacy, the brief stated.

Trinity asked the Supreme Court to uphold the ruling of the district court in all matters.