Walters v. UPMC Presbyterian Shadyside — July 2016 (Summary)

NEGLIGENCE/DUTY TO REPORT

Walters v. UPMC Presbyterian Shadyside
Nos. 309 WDA 2015, 310 WDA 2015, 311 WDA 2015, 312 WDA 2015 (Pa. Super. Ct. July 21, 2016)

The Superior Court of Pennsylvania held that plaintiff co-executors of an estate made a prima facie showing of a duty on the part of defendant hospital and medical staffing agency to report an employee radiologic technologist’s criminal behavior to law enforcement.  Also, the court held that the hospital’s violation of regulations that require the reporting of diversions of controlled substances did not support a claim of negligence per se.

After a radiologic technologist, who was employed through a medical staffing agency, was discovered diverting controlled substances and substituting water in syringes for use by unsuspecting staff upon patients, the hospital banned the technologist from all of its facilities.  The hospital did not report the incident to the Drug Enforcement Agency (“DEA”) as required by regulation.  After the incident, the technologist obtained a license and employment in another state, where he continued to divert controlled substances and replace them with water in used syringes.  As a result of this diversion, a patient became infected with the technologist’s strain of Hepatitis C and died.  Co-executors of the decedent’s estate brought lawsuits for negligence and negligence per se against the hospital and medical staffing agency.

On the negligence claim, the hospital and medical staffing agency argued that there was no special relationship that created a duty of care between them and a patient who had not been treated at their facility.  Additionally, both warned that a duty in this context would subject hospitals to limitless liability.  The plaintiffs countered that there was a duty because the failure to report the illegal activity foreseeably led to the technologist continuing his harmful conduct in another facility.  The court agreed with the plaintiffs and found that it was highly foreseeable to the hospital and staffing agency that, left unchecked, the technologist would seek new employment with access to drugs to continue his practice of substitution.  Also, the court found that the hospital and medical staffing agency had a special relationship with the technologist that created a duty for them to report his behavior to the DEA or other enforcement agencies. However, the court did not find that the hospital and staffing agency’s failure to report constituted negligence per se.  Although the reporting requirement was intended to protect against the type of harm that resulted in this case, the court held that the requirement was not intended to protect the particular group to which the plaintiffs belonged, and thus it was not negligence per se.