The lawsuit, Case No. GD-12-20264 alleges that negligence by UPMC and Maxim allowed Kwiatkowski to expose thousands of UPMC patients and employees to the Hepatitis C virus that is believed to have caused at least one fatality. This lawsuit includes a wrongful death action on behalf of a patient who died of cirrhosis of the liver, a condition often related to the Hepatitis C virus. It also includes nine other UPMC Presbyterian patients that received a letter notifying them of possible exposure to the Hepatitis C virus, three of which tested positive, five tested negative and one currently waiting on results of the Hepatitis C Antibody Screen.
Specifically the complaint alleges that UPMC and Maxim were negligent in the hiring, retention and supervision of Kwiatkowski. In addition, it alleges UPMC allowed Kwiatkowski to gain access to a controlled substance, Fentanyl, and failed to protect the safety and well-being of their patients. The class action alleges that UPMC and Maxim knew or should have known of the risks of employees pilfering or diverting narcotics. It is believed that UPMC had a similar problem with narcotics being diverted and an "Action Plan"was created to detect, monitor, and report employee drug pilfering and diversion. In spite of their own protocol, when Kwiatkowski was found with drugs in his system and empty syringes on his person, no action was taken by UPMC to complete a DEA Form 106, as required by law to document a theft of a controlled substance.
Included in the complaint is that Kwiatkowski was working at UPMC in 2008 when a co-worker accused him of lifting a syringe of Fentanyl from an operating room table and replacing it with another syringe filled with another substance. (AP 8/15/2012) Empty syringes were found on his person and in his locker. He was fired after a drug screening showed Fentanyl and other opiates in his system. The syringe left on the table was found to have been used by Kwiatkowski and refilled with another substance. UPMC did not report his behavior to law enforcement or any government agency. Maxim, the staffing agency that placed Kwiatkowski at UPMC, also failed to report the conduct to anyone.
Also included in the complaint is the August, 2012 arrest of Kwiatkowski in Massachusetts after it was found that at least 31 patients at Exeter Hospital and David Kwiatkowski had contracted the same strain of the Hepatitis C virus. It was alleged that Kwiatkowski spread the Hepatitis C virus through theft of Fentanyl. (AP 8/15/2012) At this time, UPMC sent letters to 2,000 patients warning them of possible Hepatitis C exposure at UPMC in 2008.