Missed Opportunities to Prevent the Hepatitis C Outbreak: Out of State Staffing Group and Credentialing Agency Found to Owe a Duty of Care to New Hampshire Victims

Missed Opportunities to Prevent the Hepatitis C Outbreak: Out of State Staffing Group and Credentialing Agency Found to Owe a Duty of Care to New Hampshire Victims

By

Mark A. Abramson and Jared R. Green

I.          Introduction:

            The Hepatitis C outbreak at Exeter Hospital has spawned dozens of civil lawsuits in New Hampshire and in other states as well.  The defendants in the New Hampshire cases include the hospital, the staffing agency that employed the infector when he first started at Exeter Hospital, a business that acts as a clearinghouse for staffing agencies, a staffing agency that employed the infector several years earlier, and a national certification agency.  The latter two defendants moved to dismiss the plaintiffs’ claims arguing that they owed no duty of care under New Hampshire law.  The trial court rejected both motions and ruled that these defendants may be subject to liability.

II.        Discussion:

A.        Relevant Facts:

           David Kwiatkowski completed a radiologic technology training program in his home state of Michigan in 2003.[1]  Shortly thereafter, he became a registered member of the American Registry of Radiologic Technologists (ARRT).[2]  ARRT bills itself as “the world’s largest credentialing organization that seeks to ensure high quality patient care in medical imaging, interventional procedures, and radiation therapy.”[3]

            During the first few years of his radiology technologist career, Kwiatkowski was terminated from two hospitals for drug use and “gross misconduct” and he resigned from two other hospitals while under investigation for drug use.[4]  Beginning in 2007, Kwiatkowski started working as a traveler, taking short terms assignments at medical facilities across the country while employed by various staffing agencies.[5]

            Kwiatkowski was employed by Maxim Staffing Healthcare Services, Inc. (Maxim) in May of 2008 when he obtained a temporary assignment at the University of Pittsburgh Medical Center (UPMC).  While working at UPMC, Kwiatkowski was caught removing a syringe of fentanyl from an operating room.[6]  Fentanyl is a powerful synthetic opiate analgesic similar to but more potent than morphine.[7]  With respect to the incident at UPMC,

           

                        an employee in an operating room observed Kwiatkowski enter

                        an operating room, lift his shirt, put a syringe in his pants, move

                        his arms quickly near a medication cart, and exit the room.  A

                        subsequent review of the narcotics in the room showed that a

                        syringe containing Fentanyl was missing and that it had been

                        replaced by a syringe containing a different liquid (which was later

                        found not to be Fentanyl).  Kwiatkowski, who was acting erratically

                        and sweating, was confronted and agreed to be searched shortly after

                        the incident.  Three empty syringes bearing Fentanyl labels were found

                        on his person.  An empty morphine sulfate syringe and a needle were

                        later found in his locker.  A drug test found Fentanyl and opiates in

                        Kwiatkowski's urine.[8]

            Kwiatkowski was immediately terminated from his assignment by UPMC and a report was made to Maxim.  Despite this, Maxim personnel determined that Kwiatkowski remained eligible for placement at other facilities and they did not notify ARRT of the allegations against him.  As a result, Kwiatkowski kept his ARRT credentials and moved on to a series of other medical facilities.  He was placed at a Veterans Administration hospital in Baltimore by another agency less than two weeks after the UPMC incident, and while there, apparently infected his first patient with Hepatitis C.[9]  After that, he infected six additional patients while working in a temporary capacity at Johns Hopkins University Hospital.[10]

            On April 1, 2010, Kwiatkowski was working a temporary assignment at the Arizona Heart Hospital as an employee of Springboard Staffing.  A co-worker found him passed out in the men’s room with a syringe labeled "Fentanyl" floating in the toilet.  According to the co-worker, Kwiatkowski slowly regained consciousness, swore, and said “I am going to jail.”  He then sat up, threw a needle into the toilet, and flushed it along with the fentanyl syringe.  He was taken to the emergency room on a stretcher and given a blood test that was positive for cocaine and marijuana.[11]  Hospital staff immediately terminated Kwiatkowski’s assignment and notified Springboard of his conduct.  A Springboard supervisor went to the hospital and met with Kwiatkowski, who admitted injecting himself with fentanyl in the bathroom.  Springboard faxed a report to ARRT within a few days.  The report specifically states that Kwiatkowski admitted to taking a syringe of fentanyl and injecting himself.  Despite this, ARRT took no action against Kwiatkowski’s credentials, nor did it do anything to warn those facilities that inquired about his credentials before hiring him.

            Kwiatkowski continued to work temporary traveler assignments across the country.  In May of 2010, he worked at Hays Medical Center in Kansas where he infected at least six more patients with Hepatitis C.[12]  He began working at Exeter Hospital in April of 2011 as a traveler employed by Triage Staffing.  Over the next thirteen months, he infected thirty-two additional patients with Hepatitis C.[13]  After his arrest he admitted to swapping out fentanyl syringes at Exeter Hospital approximately 50 different times.[14]

B.        Maxim Staffing:

            The plaintiffs in the civil suits filed in New Hampshire alleged that Maxim negligently failed to investigate Kwiatkowski's diversion of fentanyl while employed as a radiologic technologist at UPMC in May 2008; negligently failed to disclose Kwiatkowski’s conduct or his termination from his temporary assignment to any credentialing agency, governmental agency, law enforcement agency, or private entity; and negligently failed to otherwise act to alleviate the risk that Kwiatkowski would harm patients while working as a radiologic technologist.  Maxim moved for judgment on the pleadings arguing primarily that it did not owe a duty of care to the plaintiffs.  In an order dated May 10, 2013, Judge Kenneth McHugh denied Maxim’s motion.[15]

            After recounting the relevant facts and the parties’ arguments, Judge McHugh explained that “[a] fact finder could conclude that Maxim was in fact negligent in this matter because it had an opportunity to expose Mr. Kwiatkowski early on before he committed the majority of his misdeeds.  Given the danger and addictiveness of Mr. Kwiatkowski’s illegal drug use, a jury could find that similar acts of drug violations in a healthcare facility would be both probable and foreseeable.”[16]

            Judge McHugh expressly rejected Maxim’s argument that it did not owe a duty of care to protect the plaintiffs from the criminal acts of a third party because it did not have a special relationship with Kwiatkowski or the plaintiffs.  He wrote:

 

                        this Court is not in a position to find as a matter of law that

                        no special relationship existed as that term has been broadly

                        interpreted.  The plaintiff was a patient in a healthcare facility

                        and the perpetrator was employed as a healthcare provider in

                        such facilities.  Each represents a finite category of people,

                        places or things.  Moreover the known dangers of serious

                        bodily injury that patients of healthcare facilities are exposed

                        to by misconduct of their caregivers suggests that it is foreseeable

                        that if an entity such as a medical staffing agency is aware of

                        the specific misconduct alleged here then the likelihood of bodily

                        injury is great.[17]

           

            Judge McHugh concluded by noting the uniqueness of these cases and summarized his rulings as follows: “This Court cannot find as a matter of law that there was no duty owed here by Maxim to the plaintiff, nor was it unforeseeable that the plaintiffs would have been injured as a result of that misconduct which arguably could have been prevented had Maxim reported Kwiatkowski’s actions back in 2008 when it knew of them.  Thus it will be up to a jury to determine whether or not there is causal negligence as to Maxim.”[18]

            Maxim moved for reconsideration and the request was denied.[19]  It filed a renewed motion for reconsideration after a trial judge in Pennsylvania dismissed Maxim from a case filed in that jurisdiction.  Judge McHugh denied the motion, recognizing that the issue in both cases was the same but the applicable law was very different.[20]  Specifically, he noted that foreseeability is not a critical factor in determining liability in Pennsylvania.  Instead, a duty of care arises under Pennsylvania law only in the presence of an existing relationship between the plaintiff and the defendant.[21]  Since New Hampshire law is much broader than Pennsylvania law, Judge McHugh denied the renewed motion for reconsideration.  He acknowledged that his decision may well be subject to reversal under Pennsylvania law but that the Pennsylvania judge’s ruling would likewise be reversed under New Hampshire law.[22]

            Maxim also filed a motion for permission to file an interlocutory appeal.  Judge McHugh denied this as well explaining that the foreseeability inquiry is fact-intensive and that a jury trial is necessary to flesh out the facts.[23]  Maxim responded by filing a petition for original jurisdiction in the Supreme Court.  The Supreme Court denied the petition without explanation on September 13, 2013.

 

C.        American Registry of Radiologic Technologists:

            The plaintiffs’ claimed that ARRT negligently and recklessly failed to investigate complaints regarding David Kwiatkowski's illicit abuse of fentanyl while employed as a radiologic technologist at Arizona Heart Hospital in April 2010, negligently and recklessly continued to certify Kwiatkowski as a radiologic technologist when it knew or should have known that he did not comply with its ethical rules, abused drugs or posed a threat for drug diversion, demonstrated a disregard for patient safety, and was otherwise incompetent to provide appropriate care; and negligently and recklessly failed to disclose to employers and potential employers, including Exeter Hospital, that Kwiatkowski did not comply with its ethical rules, abused drugs or posed a threat for drug diversion, demonstrated a disregard for patient safety, and was otherwise incompetent to provide appropriate care.  Like Maxim, ARRT moved to dismiss the plaintiffs’ claims against it, arguing that it did not owe a duty of care.  It focused on the fact that it had no pre-existing relationship with the plaintiffs.  Judge McHugh rejected this contention, and denied ARRT’s motion, noting that “a duty of care can be created even though there is no direct connection to or knowledge of each other amongst the parties.”[24]

            In support of his conclusion that an existing relationship is not necessary for the establishment of a duty of care, Judge McHugh cited our Supreme Court’s opinion in Simpson v. Calivas.[25]  Simpson held that an attorney drafting a will owes a duty of care to a potential beneficiary with whom the attorney has no relationship because it is reasonably foreseeable that the beneficiary could be harmed by the attorney’s negligence.  Judge McHugh also noted that ARRT had voluntarily assumed a duty to protect hospital patients, like the plaintiffs in these cases.[26]  He rejected ARRT’s argument that it could not be held responsible for the criminal conduct of a third party.  He explained that under New Hampshire law “a reasonable man is required to anticipate and guard against the intentional, or even criminal, misconduct of others where the actor’s own affirmative act has created or exposed the other to a recognizable high degree of risk or harm through such misconduct.”[27]  In this case, but for ARRT’s failure to revoke Kwiatkowski’s credentials, he would not have been permitted to work at Exeter Hospital and would not have infected the New Hampshire plaintiffs.[28]  After addressing these issues, Judge McHugh summarized his ruling as follows:

 

                        Had ARRT conducted even the simplest of investigations of

                        the Arizona incident it would have been aware of specifically

                        how Kiwatkowski could have and in fact did infect [the plaintiff].

                        Not only was it easily discoverable that Kwiatkowski was a risk

                        to patients in general, ARRT knew or should have known specifically

                        how Kwiatkowski went about his malicious acts.  Here the

                        foreseeability is obvious not speculative.  By announcing its intention

                        to decertify those persons who have acted improperly, and by

                        committing itself to the protection of patients, ARRT has voluntarily

                        assumed a duty to protect hospital patients, including [the plaintiff],

                        from Kwiatkowski’s misconduct.  By failing to conduct a timely

                        investigation of Kwiatkowski’s actions in Arizona in April of 2010,

                        he remained certified and therefore employable by Exeter Hospital

                        in April of 2011.  Under those facts the plaintiffs can argue that ARRT

                        breached its duty to them as patients.[29]

           

            Unlike Maxim, ARRT did not move for reconsideration or permission to take an interlocutory appeal; nor has it sought original jurisdiction in the Supreme Court.

 

III.       Conclusion:

            Needless to say, there is plenty of blame to go around for the errors that led to David Kwiatkowski infecting 32 New Hampshire residents with Hepatitis C over a thirteen month period in 2011 and 2012.  The rulings by Judge McHugh in the orders referenced above ensure that two of the most culpable parties are held to answer for turning a blind eye when provided with detailed information about Kwiatkowski’s dangerous method of drug diversion.

 

                                                                   ENDNOTES

 



[1].  Plea Agreement at 3, U.S. v. Kwiatkowski, Docket No. 1:12-cr-149-JL (D.N.H. August 12, 2013).

[2]Id.

[4].  Plea Agreement, supra note 1, at 4.

[5]Id.

[6]Id.

[8].  Affidavit of Special Agent Marcie Difede at ¶55, U.S. v. Kwiatkowski, Docket No. 1:12-cr-149-JL (D.N.H. August 12, 2013).

[9].  Plea Agreement, supra note 1, at 5.

[10]Id.

[11].  “Radiology Group Was Notified of Exeter Hospital Hep C Suspect’s Firing,” Fosters Daily Democrat, July 31, 2012 (retrieved from Fosters.com).

[12].   Plea Agreement, supra note 1, at 5-6.

[13]Id. at 9.

[14]Id. at 8.

[15]See Rohwer v. Exeter Hospital, et al, Rockingham County Superior Court Docket No. 218-2012-CV-00781, Order on Defendant Maxim Healthcare Services, Inc.’s Motion for Judgment on the Pleadings (May 10, 2013).

[16]Id. at 3.

[17]Id. at 5.

[18]Id. at 6.

[19]See Rohwer v. Exeter Hospital, et al, Rockingham County Superior Court Docket No. 218-2012-CV-00781 (June 3, 2013).

[20]See Rohwer v. Exeter Hospital, et al, Rockingham County Superior Court Docket No. 218-2012-CV-00781, Order on Maxim Healthcare Services’ Renewed Motion for Reconsideration Based Upon New Authority (July 15, 2013).

[21]Id. at 1.

[22]Id. at 2.

[23]See Rohwer v. Exeter Hospital, et al, Rockingham County Superior Court Docket No. 218-2012-CV-00781, Order on Maxim Healthcare Services’ Motion to Allow Interlocutory Appeal at 1-2 (July 15, 2013).

[24]See Jane B. Doe and John A. Doe v. Exeter Hospital, et al, Rockingham County Superior Court Docket No. 218-2012-CV-1301, Order on Defendant’s The American Registry of Radiologic Technologists’ Motion to Dismiss at 3 (January 23, 2013).

[25]Id. (citing Simpson v. Calivas, 139 N.H. 1 (1994)).

[26]Id. at 6.

[27]Id. at 5 (citing Marquay v. Eno, 139 N.H. 708 (1995)).

[28]Id. at 5-6.

[29]Id. at 7.