by | General Liability |

he ongoing case of Exeter Hospital and the Hepatitis C outbreak

The biggest news story in New Hampshire this year will no doubt be that of David Kwiatkowski, whom the authorities have labeled a “serial infector”. Kwiatkowski is a 32 year old Michigan native who, in 2007, got his start in the health care industry as a traveling medical technician working in catheterization labs.  Kwiatkowski worked in as many as 6 states before Exeter Hospital hired him as a traveling Medical Technician in April of 2011.  Kwiatkowski is accused of stealing syringes containing Fentanyl, a powerful pain medication mainly intended for patients from the cardio catheterization lab. Kwiatkowski allegedly injected himself with the anesthetic, and would then refill the empty syringes with a saline like solution, and return the tainted needles to the hospital, where they were then reused on other patients. Although Kwiatkowski didn’t have direct access to Exeter Hospital’s medication system, investigators believe he was able to steal medication that other employees were in the process of preparing for patients and switch it with the syringes he had filled with another liquid. Former co-workers reported that he sometimes came in on his days off and attended procedures he wasn’t assigned to. Kwiatkowski has infected at least 32 people in New Hampshire with the hepatitis C virus, a disease that can result in serious liver damage. Consequently, more than 3,400 former patients who were hospitalized while Kwiatkowski worked at Exeter Hospital underwent testing for hepatitis C. Exeter Hospital now faces hundreds of claims from people who were either diagnosed with, or had to be tested for, the virus. A dozen hospitals in seven states are scrambling to identify people who might have been infected with hepatitis C by Kwiatkowski.

In an effort to streamline the judicial process and to avoid protracted litigation, the New Hampshire House of Representatives enacted the Nation’s first statutory program last July through which patients alleging medical malpractice can waive certain legal rights in exchange for an early settlement of their claims. This law will probably allow Exeter Hospital to approach claimants with early settlement offers. The maximum offer is $140,000 and the law sets a 5-day time limit for the patients to decide whether to accept the offer. If an offer is rejected and the claim moves to trial, a plaintiff who turned down an early settlement under this statute, but is not awarded at least 125% of the early offer then becomes responsible for the hospital’s legal fees. Additionally, the plaintiff will have the burden of proving gross negligence rather than ordinary negligence in order to prevail on the claim. Gross negligence is a legal concept where the claimant will be required to prove that Exeter Hospital had fallen so far below the standard of ordinary care to warrant the label of being “wanton” and “gross”.

The fairness of the bill is a point of major controversy; hepatitis C is considered to be among the most serious of hepatitis viruses. It is typically asymptomatic, going undetected for many years and in some cases, decades after infection, until liver damage eventually shows up. It is far easier for those claimants who were tested and cleared of any potential infection to decide to settle out rather than take their chances in court, than it is for those who have actually been diagnosed with the virus. Second, the increase in the plaintiff’s burden of proof is significant. Gross negligence means that a non-settling plaintiff will have to persuade a jury that Exeter Hospital acted in such a way that is a “shock to the consciousness”.

Although the circumstances at Exeter Hospital are tragic, proving the hospital was grossly negligent may be a difficult hurdle for claimants who turn down statutory settlement offers to overcome. Crimes, such as those committed by David Kwiatkowski, are generally not reasonably foreseeable. It seems that the new medical malpractice settlement law places those patients who were actually infected with hepatitis C and entitled to compensation, at a serious disadvantage in prevailing against Exeter Hospital, even if the hospital may be negligent in failing to protect its patients from being infected.  This is a possibility because the hospital’s actions or failure to act are not likely to rise to the level of “gross negligence”.

For more information about hepatitis C and this event, Exeter Hospital has developed a dedicated web page to help provide patients with updates, resource links and relevant information related to the virus on their website.

Acadia is pleased to share this material for the benefit of its customers.  Please note, however, that nothing herein should be construed as either legal advice or the provision of professional consulting services.  This material is for informational purposes only, and while reasonable care has been utilized in compiling this information, no warranty or representation is made as to accuracy or completeness.  Recipients of this material must utilize their own individual professional judgment in implementing sound risk management practices and procedures.

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