Drug Diversion in Healthcare Facilities

Drug Diversion in Healthcare Facilities

Drug Diversion in Healthcare Facilities

The Superior Court of Pennsylvania recently reversed a trial court's decision to dismiss negligence claims filed by multiple Plaintiffs against UPMC and Maxim ("Defendants"), a medical staffing agency, for their failure to report an employee's criminal diversion of pain medications to the Federal Drug Enforcement Agency. Radiologic technologist David Kwiatkowski was an employee of Maxim, a medical staffing agency that placed him at UPMC. An investigation revealed that Kwiatkowski stole patients' IV pain medications, injected himself, substituted water in the used syringes, and placed the syringes on the shelves to avoid detection. UPMC immediately banned Kwiatkowski from all UPMC facilities; however, according to Plaintiffs, UPMC did not report Kwiatkowski’s diversion of drugs to the DEA as required by 21 C.F.R. § 1301.76(b), or to any other law enforcement, governmental, or licensing agencies. Between 2008 and 2010, Kwiatkowski worked at eight other hospitals, including Hays Medical Center in Hays, Kansas, where he encountered Plaintiffs, who were patients in the cardiac catheterization unit during his tenure there. Each received intravenously administered medication through a syringe that Kwiatkowski used to self-administer controlled substances, refilled with water, and replaced for use by unsuspecting staff upon patients. By that time, Kwiatkowski was infected with hepatitis C. Plaintiffs subsequently tested positive for the same strain of hepatitis C as that contracted by Kwiatkowski. Plaintiffs alleged that he transmitted that infection to them and others through contaminated needles. Plaintiff Elizabeth Murphy died due to the infection. Kwiatkowski was subsequently arrested in New Hampshire and charged with acquiring a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge in violation of 21 U.S.C. § 843(a)(3), and tampering with a consumer product with reckless disregard for the risk to another and placing another in danger of and actually resulting in death or bodily injury in violation of 18 U.S.C. § 1365(a)(3). Plaintiffs sued the Defendants alleging, among other things, that they knew or should have known that Kwiatkowski was a potential carrier of diseases associated with IV drug use, and without intervention, would continue to engage in theft of controlled substances in order to satisfy his addiction. Consequently, due to the Defendants failure to report Kwiatkowski's criminal conduct to the DEA, he was able to seek and obtain employment with other healthcare facilities, including Hays Medical Center and be in a position to continue to steal and use controlled substances, which directly affected the health and well-being of Plaintiffs. The Defendants filed motions to dismiss Plaintiffs' lawsuit arguing that they had no special relationship with Plaintiffs (as they were not UPMC patients), and therefore, no duty to Plaintiffs that would support a cause of action for negligence.  UPMC argued that it's duty only extended to its patients.  Maxim argued that it had no duty to report the information it received from UPMC regarding Kwiatkowski's diversion of drugs. The trial court agreed with UPMC based upon the case of Seebold v. Prison Health Services, Inc., 57 A.3d 123 (Pa. 2012), in holding that the law imposed no duty on the part of Defendants. The Superior Court agreed that the Defendants had no special relationship with Plaintiffs, however, the Court determined that where the defendant stands in some special relationship with the person whose conduct needs to be controlled, a duty may be imposed. Brezinski v. World Truck Transfer, Inc., 755 A.2d 36, 40 (Pa.Super. 2000).  The Court, citing Restatement (Second) of Torts, § 317, determined that because Kwiatkowski was alleged to an employee of Defendants when the duty to report arose, a special relationship may include a master's duty to control a servant.  The Court also referred to Restatement (Second) of Torts, § 319, which provides that: “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” We will continue to follow this case.