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January 29. 2013 10:46PM

Judge says radiology group could be liable in hep-C case

BRENTWOOD - A national organization that certifies radiological technicians could be held liable in a lawsuit brought by hepatitis C patients allegedly infected by a former Exeter Hospital worker, a judge has ruled.

In an order handed down last week, Rockingham County Superior Court Judge Kenneth McHugh denied the American Registry of Radiologic Technologists' motion to dismiss the suit.

The credentialing organization wanted the case thrown out, arguing that it couldn't be held responsible for the unanticipated alleged criminal acts of David Kwiatkowski, the radiologic technologist accused of stealing syringes filled with the painkiller fentanyl and then replacing the dirty needles with a saline for use on Exeter Hospital patients.

As many as 32 Exeter patients were diagnosed with Kwiatkowski's strain of hepatitis, along with a dozen more from hospitals in other states where he worked before he was caught in Exeter.

Two of those patients, identified only as Jane B. Doe and John A. Doe in court documents, were among many who filed lawsuits against the hospital and others, including the American Registry of Radiologic Technologists, referred to as ARRT.

They accuse the organization of failing to investigate a complaint that Kwiatkowski abused fentanyl when he was employed as a radiologic technologist at the Arizona Heart Hospital in 2010. He was fired from the hospital after he was found in the facility's men's locker room unresponsive and in possession of syringes and needles, the hospital has said.

Despite the incident, the ARRT continued to certify Kwiatkowski and failed to disclose the information to other potential employers, the suit said.

He was hired at Exeter Hospital in 2011.

The ARRT didn't seek to revoke Kwiatkowski's credentials because it claims it didn't have first-hand evidence of the allegations, but in his ruling, McHugh said it doesn't appear that any investigation was undertaken.

He noted that the Arizona incident occurred a year before Kwiatkowski, who remains behind bars, was hired in Exeter.

"Clearly there was an opportunity for investigation and action by ARRT. Had ARRT determined that Kwiatkowski should have been decertified it is reasonable to conclude that he would not have been employed by the Exeter Hospital," McHugh wrote.

His order continued, "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. Here the foreseeability is obvious, not speculative."

One of the plaintiffs' lawyers, Jared Green of the law firm Abramson, Brown and Dugan in Manchester, said the judge'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."

He added, "We hope that by proceeding with the legal process and learning exactly how this tragedy was allowed to unfold we can help ensure that it never happens again."

The ARRT's lawyer, Lisa Wade of Orr & Reno in Concord, could not be reached for comment.

jschreiber@newstote.com


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