Pennsylvania Supreme Court Rules in Favor of Caroselli, Beachler and Coleman Plaintiffs in Walters, et al. v. UPMC Presbyterian Shadyside

June 19, 2018

The Pennsylvania Supreme Court ruled in favor of four plaintiffs in an appeal which directly addresses the issue of when a duty of care will be owed to a plaintiff who has no direct relationship with the defendant sued. The plaintiffs, residents of Kansas, were represented locally for much of the litigation by Attorneys Bill Caroselli and Susan Meredith of Caroselli, Beachler & Coleman. Following Mr. Caroselli's retirement, Attorney Susan Meredith continued to work with Attorney Lynn Johnson of Shamberg, Johnson & Bergman in Kansas City to pursue the appeal. Sadly Attorney Caroselli only recently passed away but he would have been pleased with the outcome which found that a duty was owed by UPMC Presbyterian Shadyside to the four plaintiffs. Plaintiffs claimed that while an employee of UPMC, David Kwiatkowski, a radiology technician, engaged in the diversion and substitution of intravenous fentanyl. Specifically, he 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 would be used by others to inject a patient. UPMC caught Kwiatkowski in the act diverting a fentanyl syringe and found additional used syringes in his locker. UPMC fired Kwiatkowski from his position but failed to report his criminal theft of a controlled substance to the appropriate law enforcement agency. UPMC had an obligation under the Federal Controlled Substance Act to report the theft of the fentanyl within one business day. As alleged by the Plaintiffs, UPMC falied to report the incident to the DEA which resulted in Kwiatkowski being able to continue his employment at other medical facilities and continue to divert drugs and jeoparidize the health of patients at those facilities. All four Plaintiffs, who sued UPMC, were patients at a Kansas medical facility where Kwiatkowski worked after leaving UPMC and all four plaintiffs contracted the same strain of hepatitis C that Kwiatkowski had when he was eventually arrested and convicted for drug diversion at a medical facility in New Hampshire receiving a prison sentence of 39 years.

Pennsylvania law requires that there be a duty of care owed to an injured party before another party can be held responsible. This case is important not only for the four plaintiffs who brought the suit but because the Supreme Court recognized that Pennsylvania courts will contemplate previously unrecognized duties of care when necessary. The case also affirms prior Pennsylvania case law which has held that there are five factors to be considered when recognizing a duty of care but that no one factor will be dispositive in determining if a duty is to be owed. In this case, the common law duty owed by UPMC was defined by the hospital's statutory duty to report the theft under the Federal Controlled Substance Act. The decision will allow the Plaintiffs to continue their claims which seek compensation from UPMC for their injuries and damages.