Walters, T. v. UPMC Presbyterian Shadyside
144 A.3d 104
| Pa. Super. Ct. | 2016Background
- Plaintiffs are multiple patients (or estates/spouses) who developed hepatitis C after treatment by radiologic technologist David Kwiatkowski, who had diverted and substituted controlled substances while working at UPMC in 2008 and later worked at other hospitals.
- UPMC discovered Kwiatkowski’s diversion (empty fentanyl/morphine syringes, positive drug test), banned him, and informed his staffing employer Maxim; neither UPMC nor Maxim reported the diversion to the DEA or law enforcement.
- Kwiatkowski subsequently obtained licensure/employment elsewhere and allegedly infected plaintiffs by reusing contaminated syringes that had been substituted with saline. One plaintiff died.
- Plaintiffs sued UPMC (and Maxim) for negligence, alleging (1) common-law duty to report/control dangerous employee to protect third-party patients; and (2) negligence per se against UPMC for violating 21 C.F.R. §1301.76(b) (reporting diversion).
- Trial court sustained demurrers, holding no common-law duty to protect non‑patients (relying on Seebold) and that the federal reporting rule did not create negligence per se because it protects the public generally, not a discrete class. Plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether hospital (UPMC) owes common-law duty to protect other facilities’ patients from its former employee who diverted drugs | Walters: UPMC knew of Kwiatkowski’s diversion/substitution and foreseeable risk to other patients; duty to report/control exists | UPMC: No special relationship to plaintiffs; imposing duty would create limitless liability and is foreclosed by Seebold | Reversed as to common-law duty: pleadings could support a special-relationship/master/charge-based duty to control and to report; duty may be imposed on facts pleaded |
| 2. Whether staffing agency (Maxim) owes duty to protect non-patient third parties after learning employee diverted drugs | Plaintiffs: Maxim knew or should have known of diversion/addiction and had duty to prevent future placements and report | Maxim: No relationship to plaintiffs; imposing duty would impose perpetual liability for former employees | Reversed as to common-law duty: plaintiffs pled facts possibly showing Maxim had a special relationship with Kwiatkowski and duty to control/report |
| 3. Whether violation of federal DEA reporting regulation (21 C.F.R. §1301.76(b)) creates negligence per se against UPMC | Plaintiffs: UPMC, as a registrant, had statutory duty to report diversion; failing to do so proximately caused plaintiffs’ injuries | UPMC: The CSA/regulations protect the public generally and are aimed at enforcement, not a private right for injured patients | Affirmed in part: negligence per se claim against UPMC dismissed — regulation intended to protect the public generally, not a specific class like these plaintiffs |
| 4. Remedy / procedural posture: whether demurrer properly sustained on all claims | Plaintiffs: Demurrer improperly disposed of common-law negligence claims; factual questions remain | Defendants: Legal policy bars new affirmative duty; demurrer appropriate | Mixed: Court vacated dismissal of common-law negligence claims (remanded); affirmed dismissal of negligence-per-se claim against UPMC |
Key Cases Cited
- Seebold v. Prison Health Servs., Inc., 57 A.3d 123 (Pa. 2012) (Supreme Court refused to impose broad duty by health care provider to warn/protect non-patients outside physician-patient context)
- Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000) (sets multi-factor public-policy test for existence of duty)
- Connor v. Archdiocese of Philadelphia, 975 A.2d 1084 (Pa. 2009) (standard for accepting facts as true on demurrer)
- Moran v. Valley Forge Drive-in Theater, Inc., 246 A.2d 875 (Pa. 1968) (foreseeability for duty analysis focuses on general type of risk)
- Emerich v. Philadelphia Ctr. for Human Dev., Inc., 720 A.2d 1032 (Pa. 1998) (therapist’s duty to warn limited to readily identifiable victims)
- Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270 (Pa. 2005) (standard of review on demurrer; accept pleaded facts and review legal error)
- J.E.J. v. Tri-County Big Bros./Big Sisters, Inc., 692 A.2d 582 (Pa. Super. 1997) (no duty to report absent special relationship)
- Cabiroy v. Scipione, 767 A.2d 1078 (Pa. Super. 2001) (use of statute/regulation as negligence-per-se when statute protects a particular class)
- Mahan v. Am-Gard, Inc., 841 A.2d 1052 (Pa. Super. 2003) (negligence per se requires foreseeability and proximate causation; violations may not be proximate cause if they wouldn’t reveal propensity)