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Judge: Tech Credentialer Can’t Duck Lawsuit

January 30, 2013
Written by: , Filed in: Medical Ethics, Practice Management
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The American Registry of Radiologic Technologists (ARRT) can be held liable, a judge has ruled, for not catching David Kwiatkowski, a rogue tech who is accused of infecting dozens of patients in several states with hepatitis C.

At last count, Kwiatkowski’s most recent employer, Exeter Hospital in Exeter, New Hampshire, and various other entities faced 26 lawsuits stemming from the case, according to the online news organization Exeter Patch. And that’s just in New Hampshire. Kwiatkowski also worked in seven other states.

The New Hampshire Union Leader newspaper reported that Rockingham County Superior Court Judge Kenneth McHugh last week denied an ARRT motion to have a lawsuit filed by two infected patients thrown out. The patients were identified in court documents as Jane B. Doe and John A. Doe. The credentialing organization said it shouldn’t be held responsible for Kwiatkowski’s actions.

Prosecutors say Kwiatkowski, who has hepatitis C, injected himself with narcotics intended for patients, refilling the needles with a saline solution to avoid detection. The tainted needles then infected patients, prosecutors say. Kwiatkowski is jailed on charges of fraud and tampering, to which he has pleaded not guilty. He faces up to 98 years in jail and $3.5 million in fines. For background, see our report on the case from last August.

The Doe lawsuit blamed the ARRT for continuing to certify Kwiatkowski despite a complaint that he abused the painkiller fentanyl when he worked at an Arizona hospital in 2010. On its Web site, the ARRT says, “We test and certify technologists and administer continuing education and ethics requirements for their annual registration.” However, its lawyers argued that the organization continued to certify Kwiatkowski because it didn’t have firsthand evidence of the Arizona allegations.

Judge McHugh didn’t buy that. In his order, he said:

Had ARRT conducted even the simplest of investigations of the Arizona incident it would have been aware of specifically how Kwiatkowski could have and in fact did infect Jane B. Doe. Not only was it easily discoverable that Kwiatkowski was a risk to patients in general, ARRT knew or should have known specifically how Kwiatkowski went about his malicious acts.

The ruling ended only a preliminary skirmish in what almost certainly will be a long, complicated battle. Barring settlements, the lawsuits are not expected to be decided until mid-2014—at which point appeals will likely be filed.

A lawyer for the Does, Jared Green, said McHugh’s ruling “confirms our belief that there is plenty of blame to go around for the hepatitis outbreak that has forever changed the lives of our clients and so many other innocent patients and their families.” And we all know that lawyers can be counted on to spread blame around as broadly as they possibly can. Stay tuned for updates.

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Did a manufacturer of radiosurgery tools get a last-minute provision to sabotage a competitor inserted into the fiscal cliff law? The Wall Street Journal thinks so. For details, see our Facebook page.

Related seminar: The Business of Radiology

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