November 29. 2012 11:04PM

Kwiatkowski indicted by federal grand jury with 14 charges in 7 cases

New Hampshire Sunday News

CONCORD - A federal grand jury has indicted a former Exeter Hospital employee on 14 federal charges for his alleged role in causing a hepatitis C outbreak among patients of that hospital.

According to the U.S. Attorney's Office, David M. Kwiatkowski, 33, was indicted Wednesday on seven counts each of tampering with a consumer product and fraudulently obtaining controlled substances.

The former medical technician is accused of infecting more than 30 patients in New Hampshire and elsewhere with hepatitis C through contaminated syringes. The blood-borne virus can cause chronic liver disease.

Kwiatkowski is charged with taking syringes filled with fentanyl, a painkiller prepared for patients undergoing medical procedures at Exeter Hospital, and replacing those with used syringes filled with saline.

The indictment alleges that Kwiatkowski, knowing that he was infected with hepatitis C since at least June 2010, "devised a scheme to obtain fentanyl ... for his personal use."

"Because the defendant injected the fentanyl into his body, the syringes became tainted with the hepatitis C virus," the indictment states.

And because he allegedly "replaced syringes of fentanyl with tainted syringes that he had previously used to inject himself, nurses then administered a tainted substance to patients."

As a result, the indictment alleges, "Instead of receiving doses of fentanyl, the patients received saline that contained the hepatitis C virus."

Seven patients

While there are 32 patients here who were diagnosed with the same strain of the virus as Kwiatkowski, the federal indictment is based on the cases of just seven of those patients, who underwent medical procedures on seven dates between Jan. 12 and March 12.

U.S. Attorney John Kacavas said the intent is not to exclude other patients but to present a "coherent, clear case that we believe we can prove beyond a reasonable doubt." He said he expects the seven patients will testify at trial.

"This is a very complicated case that will require us to introduce evidence of epidemiological testing, genetic sequencing and things like that," Kacavas said. "The scope of his conduct certainly exceeds these seven charges, but we believe these seven charges can result in an appropriate punishment."

He added that the ongoing investigation into the hepatitis C outbreak could mean additional charges could be brought in the future.

Kacavas said he has met personally with some of the patients who were infected with hepatitis C. Asked what that was like, he replied, "Brutal."

He called the scope of harm in the case "incalculable."

"The ripple effect of the conduct is massive. It affects not just the victims directly, but people related to the victims, friends of the victims," Kacavas said.

In addition, he said, "It sort of implicates an entire industry of traveling medical technicians, and affects them and their reputations."

'Tip of the spear'

According to the indictment, Kwiatkowski first trained and then worked as a radiologic technician in Michigan. Beginning in 2007, he became a "traveling" medical technician, employed in New York, Pennsylvania, Maryland, Arizona, Kansas and Georgia.

He began working at Exeter Hospital in April 2011 and was employed there until May of this year, when the first cases of hepatitis C were diagnosed in three patients who had been treated at the hospital's cardiac catheterization lab.

Thousands of patients who underwent procedures or surgery at the hospital during Kwiatkowski's employment were tested for the virus, and a total of 32 were diagnosed with the same strain of hepatitis C, according to the state health department.

While other states are looking into potential cases related to Kwiatkowski's previous employment, New Hampshire cannot bring charges based on his conduct in another state, Kacavas said. "However, we can seek to use evidence of conduct in other jurisdictions as admissible evidence in our case," he said.

Kacavas, who said he has been in touch with other U.S. Attorneys, said the other states are watching closely what happens here. "The fact is, we are the tip of the spear in terms of this national investigation, and I think a lot of those states will ... take a wait-and-see approach to this, to see how New Hampshire's prosecution comes out," he said.

Trial late next year
Kwiatkowski was arrested July 19, and has been in custody at Strafford County House of Correction ever since.

If convicted, he faces up to 10 years in prison on each count of tampering with a consumer product, and up to four years in prison for each count of obtaining controlled substances by fraud. Each offense also is punishable by a fine of $250,000.

Numerous federal, state and local agencies have been investigating the hepatitis C outbreak, including the FBI, Drug Enforcement Administration, Office of Criminal Investigations of the Food and Drug Administration, New Hampshire Attorney General's Office, New Hampshire State Police and Exeter police.

Because of the complexity of the case, Kacavas said he does not expect it to come to trial until late next year.