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Attorneys representing UPMC and Maxim Healthcare Services on Wednesday asked the state Supreme Court in Pittsburgh to dismiss a group of lawsuits against them alleging that their failure to report an employee who stole fentanyl led to dozens of patients across the country contracting hepatitis C years later.
The lawsuits in question, filed in Allegheny County’s civil court division by five patients and their families, were initially dismissed by a Common Pleas Court judge in 2013. However, last year, the state Superior Court reinstated them.
The allegations stem from the actions of David Kwiatkowski, a radiology technician, who was placed with UPMC by Maxim in March 2008. He was fired May 8 of that year when he was found hiding a syringe in his pants with others in his locker. Months later, Maxim went on to place him at a hospital in Maryland, and later additional agencies placed him at facilities in Arizona, Kansas and New Hampshire.
Federal investigators said Kwiatkowski, who was told he had hepatitis C in 2010, injected himself with syringes of fentanyl, a synthetic opioid, prepared for patients with various medical needs. He then replaced the fentanyl with saline, and the syringes were used on the patients.
Prosecutors said he is responsible for infecting 45 patients with the same strain of hepatitis that he has, and at least one of them died.
Kwiatkowski pleaded guilty in federal court in New Hampshire in August 2013 and was ordered to serve 39 years in prison.
Several of the infected patients sued UPMC and Maxim, claiming that had the hospital reported the drug diversion to the federal Drug Enforcement Administration within one business day of it becoming known as was required, the DEA would have launched an investigation, and Kwiatkowski would have been prohibited from further employment in his field.
But UPMC attorney John Conti told the court that there’s no way to know that such an investigation would have occurred. The hospital’s reporting requirement, he noted, does not even include providing the name of the person accused of taking the medications. Mr. Conti argued that there’s no way to connect the patients’ infections two years later to what occurred in Pittsburgh in May 2008.
“There’s no bright-line decision as to what DEA might or might not have done,” Mr. Conti said.
But Justice David Wecht interrupted: “You never let that process commence, because you didn’t make the required report, and that’s the hook they have on you.”
Mr. Conti referred to the report not being filed as “a clerical error.” He added, though, that UPMC did report the incident to the state Attorney General’s office, which closed its investigation six months later when Kwiatkowski was no longer working in Pennsylvania.
The initial suits in Allegheny County were thrown out by Common Pleas Judge R. Stanton Wettick Jr., who found that no duty of care was owed by UPMC to patients of other hospitals. However, the state Superior Court last year reinstated the claims, finding that reporting Kwiatkowski’s actions was not so arduous as to cause harm to the hospital and that it was foreseeable that Kwiatkowski’s behavior would continue if he were employed in the same capacity elsewhere.
UPMC and Maxim have asked the Supreme Court to reverse that finding.
Maureen McBride, who represented Maxim, argued that the allegations against her client are “sparse and conclusory.” She also argued that the plaintiffs presented no evidence that Maxim knew Kwiatkowski stole drugs or how he stole them. Therefore, she said, there is no duty upon her client.
But Lynn Johnson, representing the plaintiffs, said Maxim should have reported Kwiatkowski to the American Registry of Radiologic Technologists, which provided his certification; should have reported him to the Maryland Board of Physicians, which licensed him; and further had a duty not to place Kwiatkowski at another hospital.
For UPMC, Mr. Johnson said, there was a duty to report the theft of fentanyl to the DEA, a duty to report Kwiatkowski’s actions to Maxim, and a duty to report him to the board in Maryland and the radiologic technologist group.
“Because none of this happened, none of this got to other agencies, which continued to place him and allowed him to continue,” Mr. Johnson said.
He argued that the case presents no new duty of care, and instead it is the same common law duty imposed on all people not to place others into harm through foreseeable actions.
UPMC knew Kwiatkowski was employed as a traveling healthcare provider, and it was foreseeable, he argued, that without some official action being taken, Kwiatkowski would go on to another hospital and continue the same behavior.
Justice Sallie Mundy did not participate because she was on the panel of the Superior Court that decided the case last year. Justice Christine Donohue also did not participate, but no reason was stated. She was present for other cases argued during the same session.
There is no timetable set for a decision from the court.