Hospital files new objection in hep C case

BRENTWOOD – Exeter Hospital attorneys responded to a recent motion by the American Registry of Radiologic Technologists that sought to keep the hospital from recouping costs it paid to “negative” patients after the 2012 hepatitis C outbreak.

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.”

The negative patients, ARRT attorneys say, suffered no physical distress from their testing and Exeter Hospital's settlements were voluntary. “(Exeter Hospital) therefore cannot state a viable contribution claim as to these settlements,” ARRT attorneys wrote in their motion to dismiss, filed on June 1.

ARRT also asserted prior case law does not provide for financial compensation without verifiable physical symptoms of anxiety.

Hospital attorneys, however, in a Wednesday, June 15 filing, said ARRT has no basis for the “technical grounds on which to evade its responsibility.”

Also, hospital attorneys said, David Kwiatkowski, the “serial infector” who caused the outbreak due to his drug diversion at the hospital, was certified by ARRT and placed by Triage, and both agencies cannot avoid any financial responsibility.

“ARRT’s factual recitation conveniently omits (their) role in bringing about the hepatitis C outbreak at Exeter Hospital by enabling (Kwiatkowski) to job-hop around hospitals throughout the country, despite ARRT’s actual knowledge of (his) drug diverting behavior long before Kwiatkowski began working at Exeter Hospital,” attorneys said.

Attorneys also said the actual blood test underwent by the negative patients is technically a compensable injury.

Triage Staffing, the agency that placed Kwiatkowski at Exeter Hospital, also recently asked for the negative patient claims by the hospital to be dismissed.

Triage claimed it cannot be found liable by Exeter Hospital because Kwiatkowski did not constitute someone “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

Triage also asserted Kwiatkowski may not have been acting within the scope of his employment duties while diverting the drugs, and even if he was, under New Hampshire state law he was “a borrowed servant of Exeter,” and thus the hospital was solely responsible for his actions.

ARRT attorneys requested oral arguments be scheduled in federal court for their motion to dismiss. Triage has not yet requested oral arguments, but Exeter Hospital agreed to them in ARRT's case, should the court require it.

Exeter Hospital additionally settled 33 civil suits out of court with patients who tested positive following the outbreak, and subsequently filed suit against Kwiatkowski and the aforementioned agencies in federal court.

Kwiatkowski is serving a 39-year sentence in federal prison.

A jury trial on the whole matter remains tentatively set for October 2017.