Walters v. UPMC Presbyterian Shadyside

Citation144 A.3d 104,2016 PA Super 160
Decision Date21 July 2016
Docket NumberNos. 309 WDA 2015,s. 309 WDA 2015
Parties Thomas D. WALTERS and Clara M. Walters, His Wife, Appellants v. UPMC PRESBYTERIAN SHADYSIDE; Maxim Healthcare Services, Inc., and Medical Solutions L.L.C. d/b/a Medical Solutions, Appellees. Linda Ficken and William Ficken, Her Husband, Appellants v. UPMC Presbyterian Shadyside; Maxim Healthcare Services, Inc., and Medical Solutions L.L.C. d/b/a Medical Solutions, Appellees. Wanda J. Braun and Edwin J. Braun, Her Husband, Appellants v. UPMC Presbyterian Shadyside; Maxim Healthcare Services, Inc., and Medical Solutions L.L.C. d/b/a Medical Solutions, Appellees Ronnie D. Murphy and Connie E. McNeal, Individually, and as Co–Executors of the Estate of Eleanor Y. Murphy, Appellants v. UPMC Presbyterian Shadyside; Maxim Healthcare Services, Inc., and Medical Solutions L.L.C. d/b/a Medical Solutions, Appellees.
CourtSuperior Court of Pennsylvania

144 A.3d 104
2016 PA Super 160

Thomas D. WALTERS and Clara M. Walters, His Wife, Appellants
v.
UPMC PRESBYTERIAN SHADYSIDE; Maxim Healthcare Services, Inc., and Medical Solutions L.L.C. d/b/a Medical Solutions, Appellees.


Linda Ficken and William Ficken, Her Husband, Appellants
v.
UPMC Presbyterian Shadyside; Maxim Healthcare Services, Inc., and Medical Solutions L.L.C. d/b/a Medical Solutions, Appellees.


Wanda J. Braun and Edwin J. Braun, Her Husband, Appellants
v.
UPMC Presbyterian Shadyside; Maxim Healthcare Services, Inc., and Medical Solutions L.L.C. d/b/a Medical Solutions, Appellees

Ronnie D. Murphy and Connie E. McNeal, Individually, and as Co–Executors of the Estate of Eleanor Y. Murphy, Appellants
v.
UPMC Presbyterian Shadyside; Maxim Healthcare Services, Inc., and Medical Solutions L.L.C. d/b/a Medical Solutions, Appellees.

Nos. 309 WDA 2015

Superior Court of Pennsylvania.

Argued March 16, 2016.
Filed July 21, 2016.
Reargument Denied Sept. 21, 2016.


144 A.3d 107

Lynn R. Johnson, Kansas City, MO, for appellants.

Michael C. Hamilton, Pittsburgh, for Maxim Healthcare Services, appellee.

Andrew T. Tillapaugh, Pittsburgh, for UPMC Presbyterian Shadyside, appellee.

BEFORE: BOWES, MUNDY and JENKINS, JJ.

OPINION BY BOWES, J.:

Plaintiffs–Appellants Thomas D. Walters and his wife Clara M. Walters, Linda Ficken and William Ficken, her husband, Wanda Braun and her husband Edwin J. Braun, and Ronnie D. Murphy and Connie E. McNeal, individually and as co-executors of the Estate of Eleanor Y. Murphy, appeal from the trial court's order sustaining preliminary objections in the nature of a demurrer as to their negligence claims against UPMC Presbyterian–Shadyside (“UPMC”) and Maxim Healthcare Services, Inc. (“Maxim”). The action was dismissed based upon a finding that neither

144 A.3d 108

defendant owed a duty to Plaintiffs. After thorough review, we vacate that portion of the order sustaining the demurrer as to both UPMC and Maxim based on the lack of a common law duty of care, we affirm that portion sustaining the demurrer on the negligence per se claim against UPMC, and we remand for further proceedings.

Since we are reviewing the trial court's order sustaining preliminary objections in the nature of a demurrer, we look to the first amended complaint for the relevant facts, and accept them as true.1 Connor v. Archdiocese of Phila., 601 Pa. 577, 975 A.2d 1084 (2009). Radiologic technologist David Kwiatkowski was an employee of Maxim, a medical staffing agency that placed him at UPMC, or in the alternative, an employee of UPMC, which exercised the ability to control and direct his job performance.2 First Amended Complaint, 11/30/12, at ¶ 12. On or about May 7, 2008, a UPMC hospital employee saw Kwiatkowski enter an operating room, lift his shirt, put a syringe in his pants, and leave the room. Id. at ¶ 13. When UPMC confronted Kwiatkowski about the theft, he had three empty fentanyl syringes on his person, an empty morphine syringe in his locker, and tested positive for fentanyl and opiates. Id. at ¶ 14. Further investigation revealed that Kwiatkowski stole the controlled substances, injected himself, substituted water in the used syringes, and placed the syringes on the shelves to avoid detection. Id. at ¶ 13. This practice is known as substitution.

Plaintiffs pled that, due to the risks associated with improper use and diversion of controlled substances, both the federal and state governments oversee and regulate practitioners such as UPMC, who are registered to possess and dispense controlled substances. Id. at ¶ 17. As a registrant, Plaintiffs pled that, “UPMC had a legal duty to ‘provide effective controls and procedures to guard against theft and diversion of controlled substances' ” and notify the DEA “ ‘in writing, of the theft or significant loss of any controlled substances within one business day of discovery. 21 C.F.R. § 1301.76(b).’ ” Id. at ¶¶ 19–20. It did not report, and as a healthcare provider, Plaintiffs pled that UPMC “knew or should have known that medical staff such as Kwiatkowski, without intervention, would continue to engage in conduct, including theft of controlled substances in order to satisfy” his addiction. Id. at ¶ 24.

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),3 or to any other law enforcement,

144 A.3d 109

governmental, or licensing agencies. As of that date, UPMC banned Kwiatkowski from all UPMC facilities. Appellants pled that both UPMC and Maxim knew or should have known that Kwiatkowski was addicted to drugs, that he was a potential carrier of diseases associated with intravenous drug use, and that without intervention, he would continue to steal and use intravenous drugs, and substitute water or other substances for the drugs. Consequently, “[a]s a direct and proximate result of defendant UPMC's conduct and/or omissions, Kwiatkowski 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 patients,” such as Plaintiffs. Id. at ¶ 46. UPMC failed to report Kwiatkowski's theft and diversion to law enforcement and take steps necessary to ensure that Kwiatkowski would not continue that practice. Id. at ¶ 46. Specifically, “UPMC knew that Kwiatkowski was a traveling radiologic technician and knew or should have foreseen that thousands of patients around the country would be endangered if UPMC failed to take steps to prevent Kwiatkowski from continuing his illicit conduct.” Id. at ¶ 64.

After the incident at UPMC, Kwiatkowski obtained a Maryland license and secured employment as a radiologic technologist in that state.4 Between 2008 and 2010, Kwiatkowski worked at eight other hospitals, including Hays Medical Center in Hays, Kansas, where he encountered Plaintiffs. He started working at that facility on May 24, 2010, and Plaintiffs 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. 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).

144 A.3d 110

Plaintiffs filed the within civil actions, premising liability against UPMC upon several theories of negligence. First, they alleged that UPMC was vicariously liable for the acts of its employee/agent, Kwiatkowski. Second, Plaintiffs pled that UPMC violated the standard of care for hospitals when it failed to take adequate steps to ensure that similar conduct was prevented in the future. Additionally, they maintained that UPMC failed to report, as required by law, Kwiatkowski's theft and diversion of controlled substances to governmental agencies or law enforcement, which would have prevented him from continuing to engage in the theft and diversion of controlled substances. Finally, Plaintiffs pled that UPMC's violation of federal and state statutes that mandated the reporting of the diversion of controlled substances to the Drug Enforcement Administration (“DEA”) constituted negligence per se.5 Since UPMC was a registrant of controlled substances, Plaintiffs maintained it had a duty to protect healthcare patients who could be injured due to drug tampering. They averred further that, had UPMC complied with the regulations, Kwiatkowski would have been prevented from infecting them in 2010. Plaintiffs characterized UPMC's conduct as malicious, willful, wanton and so recklessly indifferent as to warrant imposition of punitive damages.

The allegations against Maxim, the staffing agency that employed Kwiatkowski, sound exclusively in negligence. According to Plaintiffs, Maxim had a duty to act in accordance with the standard of care of reasonable healthcare staffing agencies. Id. at ¶ 42. Maxim knew of the danger Kwiatkowski presented to the patients at the facilities where he worked and had a duty to ensure that Kwiatkowski would not be able to divert and substitute drugs not only at UPMC, but also at other health care facilities where he would seek employment and access to drugs. First Amended Complaint, 11/30/12, at ¶ 67. Maxim breached that duty “by failing to report Kwiatkowski's theft, use, and/or diversion of controlled substances to any state, federal, or other governmental agency and/or by failing to take adequate steps to ensure that Kwiatkowski would not, in the future, be able to steal, use, or divert controlled...

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