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Class-action lawsuit eyed in hepatitis C cases

New Hampshire Union Leader

September 23. 2012 12:14AM

CONCORD - A lawyer seeking a class-action lawsuit against Exeter Hospital in connection with the hepatitis C outbreak said his client list has grown to 169 people, including 11 former Exeter patients who have tested positive for the virus.

Attorney Peter McGrath said although most of his clients tested negative for hepatitis C, they still had to endure a gutwrenching period of time fearing they were exposed to the illness but having no idea whether they had contracted it.

'Many of them are going into counseling and other kinds of treatment as a result of the phone call at home which tells them they are possibly contaminated with a life-threatening disease,' McGrath said during a news conference Friday afternoon.

McGrath said he wanted to make it clear that all his clients feel like victims, whether they are hepatitis C positive, negative or still uncertain five months after word of the outbreak surfaced.

'Many people that are told they have to go through the testing have sleepless nights, anxiety, even post-traumatic stress disorder,' McGrath said.

The state Department of Health and Human Services has linked 32 cases to Exeter Hospital, where a former traveling medical technician allegedly injected himself with a powerful narcotic pain killer, thus contaminating needles that were later used on patients.

McGrath said he hopes to present his request for class-action status at a hearing in November. He filed a complaint in Rockingham County Superior Court against the hospital in June and has since added the Nebraska-based Triage Staffing Inc., a health care company that hired and placed David Kwiatkowski at Exeter.

'Even if the class-action is not certified, the situation we're in is, we have 169 clients that are ready to file suit if necessary, and there will probably be a lot more,' McGrath said. Kwiatkowski is charged in federal court with obtaining controlled substances by fraud and tampering with a consumer product. The case led to a nationwide investigation of hospitals where Kwiatkowski also worked and allegedly was caught more than once abusing medication intended for patients but was able to move on to another hospital in another state.

McGrath brought with him three clients on Friday, two of whom have tested positive for hepatitis C and a mother who won't know whether her 5-year-old daughter has the disease until results come in after a second round of testing scheduled for late December.

'This is scary. It's affecting everybody,' said the mother, whom McGrath identified by the pseudonym 'Betsy Smith' in order to protect the family's identity. 'The unknown is worse than anything else.'

The woman said her daughter was treated at the Exeter emergency room after an accident at school nearly a year ago and was injected with the same pain killer Kwiatkowski is accused of stealing. The little girl, who cheerfully talked and ran about the hotel banquet room during the news conference, was negative when she was tested this summer, but hepatitis C can take up to six months before it is detected, and doctors want the girl to be tested a second time.

Smith sat at a table with 'John Doe,' whose case is the basis for McGrath's lawsuit, and 'Jane Doe,' a woman who has tested positive for hepatitis C but is still waiting to hear from the Centers for Disease Control and Prevention on whether it is the same strain of the virus linked to Kwiatkowski. The 56-year-old woman broke down in tears as she recounted the last few months.

'It's a nightmare and no one should ever have to go through this,' she said.

John Doe went to Exeter for heart surgery last August, when Kwiatkowski was still working at the hospital's cardiac catheterization lab. The patient said he tested positive this summer for the same strain as Kwiatkowski, but his treatment options are limited because of his heart condition.

'It's not nice. You're like on a mental roller coaster from one day to the next. Depression has definitely kicked in like I've never seen before,' the 49-year-old said. 'It doesn't get any easier no matter which way you turn.'

McGrath said six of his clients have tested positive with the same strain linked to the hospital. Five others are positive for the virus, but are awaiting results from the CDC to determine whether it is the same strain.

McGrath said he has been working with lawyers representing the hospital and Triage, and the rapport has gotten better, although that may have changed with the news conference.

The hospital released a statement Friday saying it was surprised by McGrath's actions.

'We don't know the specific situation with these two unnamed patients, but our hearts go out to them and to all of those impacted by the alleged criminal behavior of former technician David Kwiatkowski,' the statement said. 'Exeter Hospital stands ready to provide care to each of them, as we have since this tragic situation came to light.'

Meanwhile, the state is waiting for the CDC to confirm test results for 10 former Exeter Hospital patients, Dr. Jose Montero, the state's public health director, said Friday.

Most of those 10 patients were tested in August when the state expanded testing to include patients who were treated in the hospital's main operating rooms and intensive care unit between April 1, 2011, and May 25, 2012.

Montero said there were questions surrounding those 10 results that needed further analysis and confirmation by the CDC. While it's possible that those results could be linked to the same strain involved in the outbreak, Montero said, the connection won't be known until the results are given to the state.

'We asked (the CDC) point blank: 'When should we expect the results?' And they said, 'When you get them,'' Montero said, adding that the CDC is not only assisting New Hampshire with results but also other states that are testing for hepatitis C after learning of Kwiatkowski's employment history across the country.

Since the outbreak was discovered in May, the state has tested 3,798 former Exeter Hospital patients and some hospital workers, Montero said.

Doug Alden may be reached at Union Leader correspondent Jason Schreiber ( contributed to this story.

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