Hospital will seek compensation for 'negative' hep C payouts

EXETER — A federal judge has given Exeter Hospital the green light to demand compensation for payouts it made to patients who tested negative for hepatitis C during the 2012 crisis.

In the ongoing litigation, hospital attorneys allege that Triage Staffing was negligent in placing David Kwiatkowski, the temporary employee who injected himself with fentanyl he stole from the hospital, replaced it with saline and then left infected needles to be used on patients.

Attorneys also allege that the American Registry of Radiologic Technologists were aware of similar cases involving Kwiatkowski, but failed to revoke his license.

According to court documents, Exeter Hospital reached pre-suit agreements with 188 patients claiming the anxiety of being tested and waiting days or weeks for their negative results caused them “diverse physical and emotional injuries.”

More than 3,000 patients were tested, according to the hospital's motion. The amount of the settlements reached with the negative patients remains confidential.

On Dec. 2, 2013, Kwiatkowski, who was responsible for infecting 47 patients, including 33 at Exeter Hospital, was sentenced to 39 years in federal prison. He pleaded guilty to multiple federal charges of stealing fentanyl from syringes intended for patients, replacing the medication with saline solution and allowing the needles he had infected with the disease to be used on patients.

Thirty-three civil suits were filed against Exeter Hospital and various staffing agencies by patients who tested positive for hepatitis C. Exeter Hospital settled most of the suits out of court for undisclosed amounts, and subsequently filed suit against Kwiatkowski, ARRT and Triage Staffing, requesting partial relief for the settlements.

Exeter Hospital’s attorneys have argued that ARRT was negligent in failing to investigate a 2010 complaint in Arizona that Kwiatkowski had abused fentanyl while working at Arizona Heart Hospital. According to court documents, Arizona Heart Hospital did alert ARRT to Kwiatkowski’s alleged activities, but ARRT took no action.

ARRT’s attorneys argue that Exeter Hospital was negligent in failing to monitor and investigate the drug diversion Kwiatkowski committed over one-and-a-half years at the hospital, and that Triage Staffing failed to follow its own procedures in vetting Kwiatkowski before placing him.

Triage Staffing and ARRT both argued that Exeter Hospital’s payments to the negative patients were voluntary and any liability claims against them are futile.

According to court documents, Triage and ARRT are aware of the identities of the 188 patients and the amount of the settlements.

ARRT argued in a recent objection to Exeter Hospital’s motion that none of the claimants' sustained a “legally compensable” injury in being tested.

Referring to a New Hampshire case in which a woman bit into a takeout order and discovered a Band-Aid, after which she tested negatively for HIV and hepatitis C, ARRT points to the woman’s claims being denied by a judge.

The court did not question the legitimacy of her anxiety, but said that, “recovery for mental angst, absent additional objectively verifiable physical symptoms is inconsistent with our prior case law,” according to ARRT’s filings.

Citing the difference between “imagined possibilities” and “actual exposure,” ARRT has asked for oral arguments in order to make their case, and Triage asked that Exeter Hospital’s request be denied outright.

Magistrate Judge Andrea Johnstone, however, ruled after a hearing conducted by conference call last Friday that Exeter Hospital was free to amend its complaint and sue for compensation. Johnstone's decision dismissed ARRT and Triage Staffing's objections without prejudice, meaning that Triage and ARRT are also free to refile their objection or file a new one.