Walters v. UPMC Presbyterian Shadyside

187 A.3d 214

Thomas D. WALTERS and Clara M. Walters, his wife

v.UPMC PRESBYTERIAN SHADYSIDE; Maxim Healthcare Services, Inc., and Medical Solutions L.L.C. d/b/a Medical Solutions

Appeal of: Maxim Healthcare Services, Inc.

Linda Ficken and William Ficken, her husband

v.UPMC Presbyterian Shadyside; Maxim Healthcare Services, Inc., and Medical Solutions L.L.C. d/b/a Medical Solutions

Appeal of: Maxim Healthcare Services, Inc.

Wanda J. Braun and Edwin J. Braun, her husband

v.UPMC Presbyterian Shadyside; Maxim Healthcare Services, Inc., and Medical Solutions L.L.C. d/b/a Medical Solutions

Appeal of: Maxim Healthcare Services, Inc.

Ronnie D. Murphy and Connie E. McNeal, as Co–Executors of the Estate of Eleanor Y. Murphy, and in their own right

v.UPMC Presbyterian Shadyside, Maxim Healthcare Services, Inc., and Medical Solutions L.L.C. d/b/a Medical Solutions

Appeal of: Maxim Healthcare Services, Inc.

Thomas D. Walters and Clara M. Walters, his wife

v.UPMC Presbyterian Shadyside; Maxim Healthcare Services, Inc., and Medical Solutions L.L.C. d/b/a Medical Solutions

Appeal of: UPMC Presbyterian Shadyside

Linda Ficken and William Ficken, her husband

v.UPMC Presbyterian Shadyside; Maxim Healthcare Services, Inc., and Medical Solutions L.L.C. d/b/a Medical Solutions

Appeal of: UPMC Presbyterian Shadyside

Wanda J. Braun and Edwin J. Braun, her husband

v.UPMC Presbyterian Shadyside; Maxim Healthcare Services, Inc., and Medical Solutions L.L.C. d/b/a Medical Solutions

Appeal of: UPMC Presbyterian Shadyside

Ronnie D. Murphy and Connie E. McNeal, as Co–Executors of the Estate of Eleanor Y. Murphy, and in their own right

v.UPMC Presbyterian Shadyside, Maxim Healthcare Services, Inc., and Medical Solutions L.L.C. d/b/a Medical Solutions

Appeal of: UPMC Presbyterian Shadyside

No. 15 WAP 2017

No. 16 WAP 2017

No. 17 WAP 2017

No. 18 WAP 2017

No. 19 WAP 2017

No. 20 WAP 2017

No. 21 WAP 2017

No. 22 WAP 2017

Supreme Court of Pennsylvania.

Argued: October 18, 2017

Decided: June 19, 2018

Michael Christopher Hamilton, Esq., Paula Ann Koczan, Esq., Weber, Gallagher, Simpson, Stapleton, Fires & Newby, L.L.P., William H. Lamb, Esq., Maureen Murphy McBride, Esq., James C. Sargent Jr., Esq., Lamb McErlane, PC, for Maxim Healthcare Services, Inc., Appellant.

John C. Conti, Esq., Lisa Deutsch Dauer, Esq., Christopher T. Lee, Esq., Andrew Townend Tillapaugh, Esq., Dickie, McCamey & Chilcote, P.C., Megan Justine Block, Esq., for UPMC Presbyterian Shadyside, Appellant.

David P. Helwig, Esq., Marks, O'Neill, O'Brien & Courtney, P.C., for Medical Solutions, L.L.C., etc., Appellee.

Susan A. Meredith, Esq., Caroselli, Beachler, McTiernan & Conboy, L.L.C., Lynn R. Johnson, Esq., Daniel A. Singer, Esq., for Walters, Thomas D., Walters, Clara M., Braun, Wanda J., Braun, Edwin J., Ficken, Linda, Ficken, William, Murphy, Ronnie D., McNeal, Connie E., Estate of Eleanor Y. Murphy, Appellees.

Michael J. Foley, Esq., Foley Law Firm, for Pennsylvania Association for Justice, Appellee Amicus Curiae.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE WECHT

In these consolidated cases, we granted allowance of appeal to determine whether and to what extent a hospital and a health care staffing agency have a legal duty to prevent a terminated employee from causing harm to patients at another health care facility.

Plaintiffs claim that David Kwiatkowski, a radiology technician formerly employed at UPMC Presbyterian Hospital ("UPMC"), who was placed there by staffing agency Maxim Healthcare Services, Inc. ("Maxim"), engaged in the diversion and substitution of intravenous fentanyl. Specifically, Kwiatkowski injected himself with fentanyl from a preloaded syringe, refilled the syringe with saline or another substance, and then replaced the now-contaminated syringe where it could be used by others to inject patients. In doing so years later at a Kansas hospital, Kwiatkowski allegedly communicated hepatitis C to Plaintiffs, who were patients at that hospital.

Pursuant to federal regulation, UPMC (but not Maxim) indisputably had a legal obligation to report the diversion of controlled substances to the United States Department of Justice's Drug Enforcement Administration ("DEA"). UPMC failed to do so. The Superior Court determined that Plaintiffs established that both UPMC and Maxim (collectively, "Defendants")¹ had a duty to report Kwiatkowski's misconduct to the DEA and to "law enforcement," and that Defendants' failure to do so could provide a basis for negligence claims. See Walters v. UPMC Presbyterian Shadyside , 144 A.3d 104 (Pa. Super. 2016). We affirm the Superior Court's ruling with respect to UPMC (albeit with a modest caveat), and we reverse the Superior Court's ruling to the extent it imposed the same duty upon Maxim.

I. Background and Procedural History²

From March 2008 to May 2008, Kwiatkowski was on staff at UPMC, but employed by Maxim. On May 7, 2008, a hospital staff member saw Kwiatkowski walk into an operating room, select a syringe, place it inside his clothing, and leave. UPMC later determined that a syringe containing fentanyl, a Schedule II controlled substance,³ was missing and had been replaced with a syringe containing another liquid. UPMC personnel confronted Kwiatkowski, and found on his person three empty fentanyl syringes. They then searched his locker, and found a syringe labeled as morphine.⁴ Kwiatkowski's urine tested positive for fentanyl and opiates. UPMC immediately barred Kwiatkowski from working at the hospital. However, UPMC failed to report the diversion to the DEA,⁵ despite its obligation to do so pursuant to regulations promulgated under the Comprehensive Controlled Substances Act of 1970 ("CSA" or "Act").⁶

From May 2008 to April 2010, Kwiatkowski worked at seven different hospitals in three states. In May 2010, he was placed by a staffing agency at Hays Medical Center in Hays, Kansas. Plaintiffs were patients at Hays Medical Center during Kwiatkowski's tenure. They were administered medication through a syringe that Kwiatkowski had used to inject himself, had refilled with saline, and then had replaced where it would be reused. Plaintiffs later tested positive for the same strain of hepatitis C carried by Kwiatkowski.

Kwiatkowski's ongoing misconduct did not end in Kansas. In 2012, after his employment at Exeter Hospital in New Hampshire, the New Hampshire Department of Health announced that more than thirty patients at that hospital who had been treated in the department where Kwiatkowski then worked had tested positive for hepatitis C. Thereafter, many patients whose paths had crossed Kwiatkowski's at various hospitals were urged to be tested for hepatitis C. On July 19, 2012, the United States District Court for the District of New Hampshire issued an arrest warrant for Kwiatkowski, based upon violations of 21 U.S.C. § 843(a)(3) ("acquir[ing] or obtain[ing] possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge") and 18 U.S.C. § 1365(a)(3) (tampering with any consumer product that affects interstate or foreign commerce, or its container or label, with reckless disregard for creating a risk of death or bodily injury to another, when serious bodily injury resulted). In 2013, Kwiatkowski pleaded guilty to numerous federal charges, and was sentenced to thirty-nine years in prison.

In 2012, Plaintiffs commenced this action, asserting claims for negligence against UPMC and Maxim and negligence per se against UPMC, as well as related claims for vicarious liability, punitive damages, and loss of consortium.⁷ UPMC and Maxim filed preliminary objections in the nature of demurrers. The trial court, finding that Defendants owed no legal duty to Plaintiffs, sustained the objections and dismissed Plaintiffs' claims. The trial court determined that, to impose such a duty would expose Defendants and others similarly situated to liability unbounded by geography or time, and that, as a matter of sound policy, these consequences outweighed the social benefits of imposing such a duty.

Plaintiffs appealed the trial court's order to the Superior Court, challenging only the dismissal of their negligence claims against both Defendants, effectively abandoning their negligence per se claim against UPMC. Applying the multifactorial test set forth in Althaus ex rel. Althaus v. Cohen , 562 Pa. 547, 756 A.2d 1166 (2000), the Superior Court reversed the trial court as to both Defendants. The Superior Court concluded that Defendants' relationship with Kwiatkowski, their knowledge of the conduct that led to his dismissal, their legal obligation to report such diversions, and the foreseeable risk of grievous, widespread harm associated with the continuation of such conduct elsewhere, all weighed in favor of imposing a legal duty to protect third parties from Kwiatkowski's misconduct. In the Superior Court's view, Plaintiffs pleaded "facts that would support imposition of a common[-]law duty of care upon UPMC and Maxim to report Kwiatkowski's criminal conduct to the DEA and/or other law enforcement agencies for prosecution." Walters , 144 A.3d at 121.

II. Discussion

A. Common–Law Duty

Negligence is the absence of ordinary care that a reasonably prudent person would exercise in the same or similar circumstances." Martin v. Evans , 551 Pa. 496, 711 A.2d 458, 462 (1998). "While the existence of a duty is a question of law, whether there has been a neglect of such duty is generally for the jury." Emerich v. Phila. Ctr. for Human Dev., Inc. , 554 Pa. 209, 720 A.2d 1032, 1044 (1998). "[T]he plaintiff has the burden of establishing, by a preponderance of the evidence, that the defendant engaged in conduct that deviated from the general standard of care expected under the circumstances, and that this deviation proximately caused actual harm." Martin , 711 A.2d at 462. To establish a prima facie case of negligence, a plaintiff must plead that "the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach...