Walters, T. v. UPMC Presbyterian Shadyside

J-A07013-16
2016 Pa. Super. 160
THOMAS D. WALTERS AND CLARA M. IN THE SUPERIOR COURT OF
WALTERS, HIS WIFE, PENNSYLVANIA
Appellants
v.
UPMC PRESBYTERIAN SHADYSIDE;
MAXIM HEALTHCARE SERVICES, INC.,
AND MEDICAL SOLUTIONS L.L.C. D/B/A
MEDICAL SOLUTIONS,
Appellees No. 309 WDA 2015
Appeal from the Order Entered February 6, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-12-018339
LINDA FICKEN AND WILLIAM FICKEN, IN THE SUPERIOR COURT OF
HER HUSBAND, PENNSYLVANIA
Appellants
v.
UPMC PRESBYTERIAN SHADYSIDE;
MAXIM HEALTHCARE SERVICES, INC.,
AND MEDICAL SOLUTIONS L.L.C. D/B/A
MEDICAL SOLUTIONS,
J-A07013-16
Appellees No. 310 WDA 2015
Appeal from the Order Entered February 6, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-12-016165
WANDA J. BRAUN AND EDWIN J. BRAUN, IN THE SUPERIOR COURT OF
HER HUSBAND, PENNSYLVANIA
Appellants
v.
UPMC PRESBYTERIAN SHADYSIDE;
MAXIM HEALTHCARE SERVICES, INC.,
AND MEDICAL SOLUTIONS L.L.C. D/B/A
MEDICAL SOLUTIONS,
Appellees No. 311 WDA 2015
Appeal from the Order Entered February 6, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-12-024324
RONNIE D. MURPHY AND CONNIE E. IN THE SUPERIOR COURT OF
MCNEAL, AS CO-EXECUTORS OF THE PENNSYLVANIA
ESTATE OF ELEANOR Y. MURPHY, IN
THEIR OWN RIGHT
Appellants
v.
UPMC PRESBYTERIAN SHADYSIDE,
MAXIM HEALTHCARE SERVICES, INC.,
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J-A07013-16
AND MEDICAL SOLUTIONS, L.L.C. D/B/A
MEDICAL SOLUTIONS,
Appellees No. 312 WDA 2015
Appeal from the Order Entered February 6, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-14-000899
BEFORE: BOWES, MUNDY AND JENKINS, JJ.
OPINION BY BOWES, J.: FILED JULY 21, 2016
Plaintiffs-Appellants Thomas D. Walters and his wife Clara M. Walters,
Linda Ficken and William Ficken, her husband, Wanda Braun and her
husband Edwin J. Braun, and Ronnie D. Murphy and Connie E. McNeal,
individually and as co-executors of the Estate of Eleanor Y. Murphy, appeal
from the trial court’s order sustaining preliminary objections in the nature of
a demurrer as to their negligence claims against UPMC Presbyterian-
Shadyside (“UPMC”) and Maxim Healthcare Services, Inc. (“Maxim”). The
action was dismissed based upon a finding that neither defendant owed a
duty to Plaintiffs. After thorough review, we vacate that portion of the order
sustaining the demurrer as to both UPMC and Maxim based on the lack of a
common law duty of care, we affirm that portion sustaining the demurrer on
the negligence per se claim against UPMC, and we remand for further
proceedings.
Since we are reviewing the trial court’s order sustaining preliminary
objections in the nature of a demurrer, we look to the first amended
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complaint for the relevant facts, and accept them as true.1 Connor v.
Archdiocese of Phila., 975 A.2d 1084 (Pa. 2009). Radiologic technologist
David Kwiatkowski was an employee of Maxim, a medical staffing agency
that placed him at UPMC, or in the alternative, an employee of UPMC, which
exercised the ability to control and direct his job performance.2 First
Amended Complaint, 11/30/12, at ¶12. On or about May 7, 2008, a UPMC
hospital employee saw Kwiatkowski enter an operating room, lift his shirt,
put a syringe in his pants, and leave the room. Id. at ¶13. When UPMC
confronted Kwiatkowski about the theft, he had three empty fentanyl
syringes on his person, an empty morphine syringe in his locker, and tested
positive for fentanyl and opiates. Id. at ¶14. Further investigation revealed
that Kwiatkowski stole the controlled substances, injected himself,
substituted water in the used syringes, and placed the syringes on the
shelves to avoid detection. Id. at ¶13. This practice is known as
substitution.
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1
For ease of reference, all citations to the pleadings and the certified record
are to the Walters case.
2
A radiologic technologist is “[a]n individual who is a graduate of a program
in radiologic technology approved by the Council on Medical Education of the
American Medical Association or who has the equivalent of such education
and training. 28 Pa.Code 101.4 (administrative code provision implementing
Health Care Facilities Act, 35 P. S. §§ 448.101 -- 448.904).
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Plaintiffs pled that, due to the risks associated with improper use and
diversion of controlled substances, both the federal and state governments
oversee and regulate practitioners such as UPMC, who are registered to
possess and dispense controlled substances. Id. at ¶17. As a registrant,
Plaintiffs pled that, “UPMC had a legal duty to ‘provide effective controls and
procedures to guard against theft and diversion of controlled substances’”
and notify the DEA “‘in writing, of the theft or significant loss of any
controlled substances within one business day of discovery. 21 C.F.R. §
1301.76(b).’” Id. at ¶¶19-20. It did not report, and as a healthcare
provider, Plaintiffs pled that UPMC “knew or should have known that medical
staff such as Kwiatkowski, without intervention, would continue to engage in
conduct, including theft of controlled substances in order to satisfy” his
addiction. Id. at ¶24.
According to Plaintiffs, UPMC did not report Kwiatkowski’s diversion of
drugs to the DEA as required by 21 C.F.R. § 1301.76(b),3 or to any other
____________________________________________
3
21 C.F.R. § 1301.76(b) provides in pertinent part:
(b) The registrant shall notify the Field Division Office of the
Administration in his area, in writing, of the theft or significant
loss of any controlled substances within one business day of
discovery of such loss or theft. The registrant shall also
complete, and submit to the Field Division Office in his area, DEA
Form 106 regarding the loss or theft. When determining whether
a loss is significant, a registrant should consider, among others,
the following factors:
(Footnote Continued Next Page)
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law enforcement, governmental, or licensing agencies. As of that date,
UPMC banned Kwiatkowski from all UPMC facilities. Appellants pled that
both UPMC and Maxim knew or should have known that Kwiatkowski was
addicted to drugs, that he was a potential carrier of diseases associated with
intravenous drug use, and that without intervention, he would continue to
steal and use intravenous drugs, and substitute water or other substances
for the drugs. Consequently, “[a]s a direct and proximate result of
defendant UPMC’s conduct and/or omissions, Kwiatkowski was able to seek
_______________________
(Footnote Continued)
(1) The actual quantity of controlled substances
lost in relation to the type of business;
(2) The specific controlled substances lost;
(3) Whether the loss of the controlled substances
can be associated with access to those
controlled substances by specific individuals, or
whether the loss can be attributed to unique
activities that may take place involving the
controlled substances;
(4) A pattern of losses over a specific time period,
whether the losses appear to be random, and
the results of efforts taken to resolve the
losses; and, if known,
(5) Whether the specific controlled substances are
likely candidates for diversion;
(6) Local trends and other indicators of the
diversion potential of the missing controlled
substance.
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and obtain employment with other healthcare facilities, including Hays
Medical Center and be in a position to continue to steal and use controlled
substances[,] which directly affected the health and well-being of patients,”
such as Plaintiffs. Id. at ¶46. UPMC failed to report Kwiatkowski’s theft and
diversion to law enforcement and take steps necessary to ensure that
Kwiatkowski would not continue that practice. Id. at ¶46. Specifically,
“UPMC knew that Kwiatkowski was a traveling radiologic technician and
knew or should have foreseen that thousands of patients around the country
would be endangered if UPMC failed to take steps to prevent Kwiatkowski
from continuing his illicit conduct.” Id. at ¶64.
After the incident at UPMC, Kwiatkowski obtained a Maryland license
and secured employment as a radiologic technologist in that state.4
Between 2008 and 2010, Kwiatkowski worked at eight other hospitals,
including Hays Medical Center in Hays, Kansas, where he encountered
Plaintiffs. He started working at that facility on May 24, 2010, and Plaintiffs
were patients in the cardiac catheterization unit during his tenure there.
Each received intravenously administered medication through a syringe that
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4
Plaintiffs argue that certification through the American Registry of
Radiologic Technologists (“ARRT”) was a prerequisite for the license, and
that Kwiatkowski remained certified due to UPMC and Maxim’s failure to
report his criminal conduct. See American Registry of Radiologic
Technologists (ARRT), 28 Pa.Code § 127.5.
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Kwiatkowski used to self-administer controlled substances, refilled with
water, and replaced for use by unsuspecting staff upon patients. By that
time, Kwiatkowski was infected with hepatitis C. Plaintiffs subsequently
tested positive for the same strain of hepatitis C as that contracted by
Kwiatkowski. Plaintiffs alleged that he transmitted that infection to them
and others through contaminated needles. Elizabeth Murphy died due to the
infection.
Kwiatkowski was subsequently arrested in New Hampshire and
charged with acquiring a controlled substance by misrepresentation, fraud,
forgery, deception or subterfuge in violation of 21 U.S.C. § 843(a)(3), and
tampering with a consumer product with reckless disregard for the risk to
another and placing another in danger of and actually resulting in death or
bodily injury in violation of 18 U.S.C. § 1365(a)(3).
Plaintiffs filed the within civil actions, premising liability against UPMC
upon several theories of negligence. First, they alleged that UPMC was
vicariously liable for the acts of its employee/agent, Kwiatkowski. Second,
Plaintiffs pled that UPMC violated the standard of care for hospitals when it
failed to take adequate steps to ensure that similar conduct was prevented
in the future. Additionally, they maintained that UPMC failed to report, as
required by law, Kwiatkowski’s theft and diversion of controlled substances
to governmental agencies or law enforcement, which would have prevented
him from continuing to engage in the theft and diversion of controlled
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substances. Finally, Plaintiffs pled that UPMC’s violation of federal and state
statutes that mandated the reporting of the diversion of controlled
substances to the Drug Enforcement Administration (“DEA”) constituted
negligence per se.5 Since UPMC was a registrant of controlled substances,
Plaintiffs maintained it had a duty to protect healthcare patients who could
be injured due to drug tampering. They averred further that, had UPMC
complied with the regulations, Kwiatkowski would have been prevented from
infecting them in 2010. Plaintiffs characterized UPMC’s conduct as
malicious, willful, wanton and so recklessly indifferent as to warrant
imposition of punitive damages.
The allegations against Maxim, the staffing agency that employed
Kwiatkowski, sound exclusively in negligence. According to Plaintiffs, Maxim
had a duty to act in accordance with the standard of care of reasonable
healthcare staffing agencies. Id. at ¶42. Maxim knew of the danger
Kwiatkowski presented to the patients at the facilities where he worked and
had a duty to ensure that Kwiatkowski would not be able to divert and
substitute drugs not only at UPMC, but also at other health care facilities
where he would seek employment and access to drugs. First Amended
____________________________________________
5
Plaintiffs alleged that “at a minimum,” the failure to report violated 21
U.S.C. §801 et seq., 21 C.F.R. § 1301 et seq., and 28 Pa.Code § 25 et seq.
UPMC also was required, upon discovering the theft of controlled substances,
to file a DEA Form 106. Plaintiffs’ Amended Complaint, 11/30/12, at ¶20.
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Complaint, 11/30/12, at ¶67. Maxim breached that duty “by failing to report
Kwiatkowski’s theft, use, and/or diversion of controlled substances to any
state, federal, or other governmental agency and/or by failing to take
adequate steps to ensure that Kwiatkowski would not, in the future, be able
to steal, use, or divert controlled substances.” Id. at ¶68. As a
consequence of Maxim’s negligence, Plaintiffs averred they were injured.6
Both Maxim and UPMC filed preliminary objections in the nature of a
demurrer alleging that, even accepting all well-pleaded facts as true, they
had no duty to Plaintiffs that would support a cause of action for negligence.
UPMC maintained that, since there was no special relationship between itself
and Plaintiffs or itself and Kwiatkowski, no duty could be inferred from the
general duty imposed on all persons not to place others at a risk of harm.
Furthermore, it warned that imposition of a duty on the facts herein was
“not only contrary to established law but would subject hospitals in this
Commonwealth to limitless liability.” Preliminary Objections to Plaintiffs’
Amended Complaint, 12/20/12, at ¶19. It contended further that the
negligence per se claim failed because the statutes cited by Plaintiffs were
not designed to protect them, as opposed to the general public, from the
harm alleged.
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6
Plaintiffs voluntarily dismissed claims of negligence against Kwiatkowski’s
Kansas employer, Medical Solutions, and hence, those claims are not before
us.
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Plaintiffs countered that the failure of UPMC and Maxim to report
Kwiatkowski’s theft and substitution of drugs enabled him to continue
working as a radiologic technologist in various hospitals around the country.
According to Plaintiffs, due to UPMC’s violation of that statute, it was
foreseeable that Kwiatkowski would continue to steal and substitute drugs
and endanger future patients with contaminated syringes transmitting blood-
borne pathogens.
The trial court rejected the Plaintiffs’ negligence per se claim against
UPMC, finding “nothing in the legislation or accompanying regulations
suggesting that drug diversion by healthcare employees and its risks to
patients are specific subjects that the Controlled Substances Act addressed.”
Trial Court Opinion, 6/30/13, at 4. Furthermore, the court held that the
notice requirements of 21 C.F.R. §1301.76(b) were only intended to protect
the general public, not a specific group encompassing Plaintiffs. As to the
common law negligence claims against UPMC and Maxim, the court relied
upon Seebold v. Prison Health Services, Inc., 57 A.3d 123 (Pa. 2012), in
holding that the law imposed no duty on the part of Defendants. The trial
court concluded from Seebold that
(1) foreseeability is not necessarily the critical factor in deciding
whether UPMC shall be liable to plaintiffs for UPMC’s failure to
report; (2) since UPMC did not create the risk (but only failed to
prevent the harm), UPMC is not liable to third persons whom it
never treated in the absence of a court-created duty; (3) the
default position would avoid the creation of a new duty unless
the court is able to see with reasonable clarity the results of the
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decision and to determine with reasonable certainty that the
change will serve the best interests of society; and (4) the case
law which permits recovery where there is no relationship
between the plaintiff and the defendant must be narrowly
construed because of the Supreme Court’s “stated concern about
imposing liability upon healthcare providers without limits.”
[Seebold,] 57 A.3d at 1240.
Trial Court Opinion, 6/20/13, at 13. In response to Plaintiffs’ insistence that
UPMC need only comply with a reporting requirement, which is hardly
onerous, the court stated that Plaintiffs’ position failed to account for
inevitable employee error in reporting, and that UPMC should not be exposed
to “potentially limitless liability because of simple employee error.” Id. at
14. The court held that UPMC’s duty extended only to its patients. As to
Maxim, the court found no duty to report the information it received from
UPMC regarding Kwiatkowski’s diversion of drugs. All claims against UPMC
and Maxim were dismissed.
Plaintiffs filed the within appeal and they present four questions for our
review:
I. Does a defendant hospital have a duty to protect patients
of other healthcare facilities who may come in contact with
the hospital’s former agent/employee when the defendant
hospital knew the agent/employee had diverted drugs
while working at its facility, knew or should have known
that the agent/employee would engage in the same
conduct with subsequent healthcare employers and knew
or should have known that drug diversion creates a high
degree of risk of causing harm to hospital patients that
come in contact with staff who are known to divert drugs?
II. Does a defendant hospital’s violation of a mandatory
reporting requirement in a federal regulation intended to
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curtail drug diversions in hospital facilities create a
statutory duty that the defendant hospital owes to hospital
patients who are subsequently harmed because the drug
diverter’s conduct went unreported and as such, he was
able to continue to continue to gain employment in other
healthcare facilities, allowing him to continue to engage in
drug diversions that created a high degree of risk of
causing harm to hospital patients?
III. Is a hospital patient injured by a health care worker’s
diversion and substitution of controlled substances part of
a class of individuals which the Federal Controlled
Substances Act was intended, at least in part, to protect,
such that a defendant hospital’s violation of a federal
controlled Substance Act regulation mandating the
reporting of drug diversion constitutes negligence per se
when a patient is harmed as a direct result of the
violation?
IV. Does a defendant medical staffing agency have a duty to
protect patients of healthcare facilities that may come in
contact with the agency’s former employee when the
defendant knew or should have known the employee had
diverted drugs while in its employment, knew or should
have known that the employee would engage in the same
conduct with subsequent healthcare employers and knew
or should have known that drug diversion creates a high
risk of causing harm to hospital patients that come in
contact with staff who are known to divert drugs?
Appellants’ brief at 5-6.7
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7
As their premise for imposing a legal duty, Plaintiffs have pled that both
UPMC and Maxim were Kwiatkowski’s employers, and each knew of
Kwiatkowski’s diversion and substitution of controlled substances at UPMC
and the risk presented. Consequently, we will address together Plaintiffs’
first and fourth issues involving the duty question, noting distinctions when
the facts warrant different treatment or analysis of UPMC or Maxim.
Similarly, since Plaintiffs’ second and third issues implicate negligence per se
generally, we will discuss them together.
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Preliminary objections in the nature of a demurrer test the legal
sufficiency of the complaint. The trial court considering a demurrer must
treat all material facts set forth in the challenged pleadings as true, as well
as all inferences reasonably deducible therefrom. The demurrer should be
sustained only where it is “clear and free from doubt that the pleader will be
unable to prove facts legally sufficient to establish the right to relief.”
Richmond v. McHale, 35 A.3d 779, 783 (Pa.Super. 2012). If there is any
doubt as to whether preliminary objections in the nature of a demurrer
should be sustained, that doubt should be resolved in favor of overruling the
preliminary objections. Id.
On appeal from an order sustaining or overruling a demurrer, our
standard of review is to determine whether the trial court committed an
error of law. Like the trial court, for purposes of our review “all material
facts as set forth in the complaint, as well as all inferences reasonably
deducible therefrom, must be accepted as true.” Bilt-Rite Contractors,
Inc. v. the Architectural Studio, 866 A.2d 270, 272 (Pa. 2005). The
issue before us is “whether, on the facts averred, the law says with certainty
that no recovery is possible” and any doubt must be resolved in favor of
overruling the demurrer. Id. at 274 (quoting MacElree v. Philadelphia
Newspapers, Inc., 674 A.2d 1050, 1056 (Pa. 1996)).
To establish a common law cause of action in negligence, a plaintiff
must demonstrate that the defendant owed a duty of care to the plaintiff,
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the defendant breached that duty, the breach resulted in injury to the
plaintiff, and the plaintiff suffered an actual loss or damage. Lux v. Gerald
E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa.Super. 2005). "[A] duty or
obligation recognized by the law, requiring the actor to conform to a certain
standard of conduct[,]" is the first element of negligence. Atcovitz v.
Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1222 (Pa. 2002). Whether
a duty of care exists is a question of law assigned initially to the trial court
and subject to plenary review on appeal. Winschel v. Jain, 925 A.2d 782,
796 (Pa.Super. 2007); Sharpe v. St. Luke's Hosp., 821 A.2d 1215, 1219
(Pa. 2003). Where, however, the plaintiff makes a prima facie showing of a
duty, the applicable standard of care, whether it was breached, and whether
the breach was a cause in fact of the injury are questions of fact for the jury.
K.H. ex rel. H.S. v. Kumar, 122 A.3d 1080, 1094 (Pa.Super. 2015).
As our High Court reiterated in Althaus ex rel. Althaus v. Cohen,
756 A.2d 1166, (Pa. 2000):
In determining the existence of a duty of care, it must be
remembered that the concept of duty amounts to no more than
‘the sum total of those considerations of policy which led the law
to say that the particular plaintiff is entitled to protection’ from
the harm suffered[.] To give it any greater mystique would
unduly hamper our system of jurisprudence in adjusting to the
changing times.”
Althaus, at 1168-69 (quoting Sinn v. Burd, 404 A.2d 672, 681 (Pa.
1979)). The Court went on to quote the late Dean Prosser:
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These are shifting sands, and no fit foundation. There is a duty if
the court says there is a duty; the law, like the Constitution, is
what we make it. Duty is only a word with which we state our
conclusion that there is or is not to be liability; it necessarily
begs the essential question. When we find a duty, breach and
damage, everything has been said. The word serves a useful
purpose in directing attention to the obligation to be imposed
upon the defendant, rather than the causal sequence of events;
beyond that it serves none. In the decision whether or not there
is a duty, many factors interplay: The hand of history, our ideas
of morals and justice, the convenience of administration of the
rule, and our social ideas as to where the loss should fall. In the
end the court will decide whether there is a duty on the basis of
the mores of the community, 'always keeping in mind the fact
that we endeavor to make a rule in each case that will be
practical and in keeping with the general understanding of
mankind.'
Id.
Recognizing that “the legal concept of duty of care is necessarily
rooted in often amorphous public policy considerations, which may include
our perception of history, morals, justice and society[,]” the Althaus Court
identified five factors that should be weighed in determining whether a duty
exists in a particular case. Id. at 1168. Those factors are:
(1) the relationship between the parties;
(2) the social utility of the actor's conduct;
(3) the nature of the risk imposed and foreseeability of the harm
incurred;
(4) the consequences of imposing a duty upon the actor; and
(5) the overall public interest in the proposed solution.
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Althaus, supra at 1168-69 (citations omitted). Courts are not required to
weigh each factor equally and no individual factor is dispositive. Id. at
1169. "[A] duty will be found to exist where the balance of these factors
weighs in favor of placing such a burden on a defendant." Phillips v.
Cricket Lighters, 841 A.2d 1000, 1008-09 (Pa. 2003). "Whether a duty
exists is ultimately a question of fairness.” Campo v. St. Luke's Hosp.,
755 A.2d 20, 24 (Pa.Super. 2000).
Common Law Duty of Care on the Part of UPMC and Maxim
Plaintiffs contend first that, “the utility of imposing a duty [upon UPMC
and Maxim] outweighs the costs associated with doing so.” Appellants’ brief
at 24. They cite the compelling public interest in preventing the diversion of
prescription drugs, especially from hospitals, as evidenced by federal
statutes and regulations requiring hospitals and other drug registrants to
secure drugs and report theft. Moreover, substitution, which is the removal
of prescription drugs from a syringe often through injection and replacement
with water, presents not only the risk that diluted medication will be
administered to patients, but that the person diverting and substituting will
contaminate the syringe and transmit potentially fatal diseases such as HIV
and hepatitis C. Plaintiffs maintain that UPMC knew that Kwiatkowski was
diverting and substituting fentanyl yet failed to report it to law enforcement,
which would have halted his access to future patients at facilities where
Kwiatkowski worked. Maxim knew Kwiatkowski was an addict and knew or
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should have known that, without intervention, Kwiatkowski would continue
to steal controlled substances to maintain his habit.8 According to Plaintiffs,
“UPMC and Maxim could and should have foreseen that Kwiatkowski’s
diversion of fentanyl, if unchecked and unreported, was likely to cause harm
to the class of individuals to which plaintiffs belonged, i.e., those likely to
receive care from the drug addict Kwiatkowski if his habit was allowed to
continue.” Id. at 27.
Plaintiffs point to the nature of Kwiatkowski’s harm-producing conduct
at UPMC, which was identical to his conduct at Hays Medical Center, as
evidence that it was foreseeable to UPMC and Maxim that Kwiatkowski would
seek other health-related employment to facilitate access to prescription
drugs, divert them for his own use, and substitute diluted substances for
injection through contaminated needles to unsuspecting patients, unless he
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8
The allegation that Maxim knew of Kwiatkowski’s addiction and diversion
of drugs suffices for our purposes of finding a duty. We note further that, in
a subsequent filing, Maxim acknowledged that UPMC notified it that
Kwiatkowski was terminated “for cause, reason – misconduct[,]” and that it
knew the termination was “related to narcotics.” Response in Opposition to
Plaintiffs’ Motion for Reconsideration of the Court’s June 20, 2013 Order,
8/12/13, at unnumbered 3. Additionally, Maxim represented that
Kwiatkowski worked at a minimum of seven hospitals, not including Hays
Medical Center, after being terminated at UPMC, and that Maxim was “not
responsible for or associated with Kwiatkowski” or his placement in at least
six of those hospitals. Id. at unnumbered 7. The reasonable inference to be
drawn from the latter statement is that the agency may have placed
Kwiatkowski at other healthcare facilities after it knew the reason for his
termination by UPMC.
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was reported to authorities and denied access. They rely upon Moran v.
Valley Forge Drive-in Theater, Inc., 246 A.2d 875, 878 (Pa. 1968), for
the proposition that the type of foreseeability required for imposition of a
duty of care is “the likelihood of the occurrence of a general type of risk
rather than the likelihood of the precise chain of events leading to the
injury[,]” as distinguished from the foreseeability employed in proximate
cause analysis that is specific to the particular plaintiff. Plaintiffs contend
that the general type of risk presented by Kwiatkowski’s conduct met the
foreseeability requirement for imposition of a duty.
Neither UPMC nor Maxim squarely addresses Plaintiffs’ arguments
regarding the foreseeability of the harm created by Kwiatkowski’s unchecked
drug diversion and substitution and the public interest in imposing a duty.
Rather, Maxim focuses on the first factor, the lack of a special relationship
between itself and Plaintiffs, as dispositive of the duty question. It relies
heavily upon our decision in J.E.J. v. Tri-County Big Bros./Big Sisters,
Inc., 692 A.2d 582, 584 (Pa.Super. 1997), where this Court declined to
impose a duty upon Tri-County to plaintiffs based on a statutory failure to
report suspected sexual misconduct by one of its Big Brothers upon his Little
Brother.9 Thereafter, in circumstances unrelated to Tri-County Big Brothers
____________________________________________
9
Pennsylvania's Child Protection Services Law, 23 Pa.C.S. § 6301 et seq.,
requires individuals who, in the course of their employment, come into
(Footnote Continued Next Page)
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activities, the abuser molested the plaintiffs’ minor son. The parents
asserted that the Big Brothers national organization was independently and
vicariously liable for their son’s physical injury and emotional harm, as well
as their own emotional distress, due to its failure to report the suspected
prior abuse involving the Big Brother.
Noting the absence of any special relationship between Tri-County and
the plaintiffs, this Court found the only duty owed by the defendant to the
plaintiffs was the general duty imposed on all persons not to expose others
to reasonably foreseeable risks of injury. Furthermore, we relied upon the
principle that a person is not liable for the criminal conduct of another in the
absence of a special relationship imposing a pre-existing duty. Feld v.
Merriam, 485 A.2d 742, 746 (Pa. 1984); T.A. v. Allen, 669 A.2d 360
(Pa.Super. 1995) (same).10 Since no relationship was alleged between the
_______________________
(Footnote Continued)
contact with children to make a report to the local children and youth agency
when they have reasonable cause to suspect, on the basis of their medical,
professional, or other training and experience, that a child who has come
before them in their professional or official capacity is an abused child. 23
Pa.C.S. § 6311.
10
Neither UPMC nor Maxim asserts the principle that, generally, one is not
liable for the physical harm caused by a third party’s criminal conduct, even
if the actor’s negligent conduct created the situation which afforded the
opportunity for the third person to commit the tort or crime, as that
intentional tort or crime is a superseding cause of harm. The exception to
that rule, however, is the situation where the actor at the time of his
negligent conduct realized or should have realized the likelihood that such
a situation might be created, and that a third person might avail himself of
(Footnote Continued Next Page)
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plaintiffs’ child and Tri-County National Organization, the latter only owed
the general duty imposed on all persons not to place others at risk of
reasonably foreseeable harms and did not include a duty to report the
abuser. See Schmoyer v. Mexico Forge, Inc., 649 A.2d 705, 708
(Pa.Super. 1994) (Absent a special relationship, the duty that one person
owes to another is "the general duty imposed upon all persons not to expose
others to risk of injury which are reasonably foreseeable[."])
Maxim argues that, as in Tri-County, it had no relationship with either
Plaintiffs or Kwiatkowski at the time Plaintiffs were exposed to Kwiatkowski
and, hence, no duty. Furthermore, it alleges that the consequences of
holding it liable for Kwiatkowski’s conduct go far beyond the cost of making
a telephone call. It characterizes Plaintiffs’ position as seeking to hold
Maxim liable in perpetuity for injuries caused by any former employee. It
advances the same position found persuasive by the trial court: that in the
_______________________
(Footnote Continued)
the opportunity to commit such a tort or crime. See Restatement (Second)
of Torts § 448 (1965) (Intentionally Tortious Or Criminal Acts Done Under
Opportunity Afforded By Actor's Negligence) (emphasis added). Other
exceptions include situations where “(a) a special relationship exists between
the actor and the third person's conduct, or (b) a special relationship exists
between the actor and the other that gives the other a right to protection.”
See Emerich v. Phila. Ctr. for Human Dev., Inc., 720 A.2d 1032, 1036
(Pa. 1998) (holding that the special relationship between a mental health
professional and his patient may, in certain circumstances, give rise to an
affirmative duty to protect and warn patient’s intended victim); see Feld v.
Merriam, 485 A.2d 742, 746 (Pa. 1984) (holding landlord has duty to
protect tenants from the foreseeable criminal acts of third persons).
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event of a simple employee error in failing to report, it could be subject to
potentially limitless liability.
UPMC, like the trial court, relies upon Seebold in refuting the
establishment of a new affirmative duty of care on UPMC to protect unknown
third parties. It cites Seebold for the proposition that it had “no duty to
protect or rescue someone who is at risk on account of circumstances the
defendant had no role in creating.” Seebold at 655 (citing e.g., Yania v.
Bigan, 155 A.2d 343, 346 (Pa. 1959) and Section 314 of the Restatement of
Torts for the proposition that a mere observer has no duty to rescue).
In Seebold, a corrections officer sued Prison Health Services (“PHS”),
the contractor who provided medical care at the prison, when she contracted
a contagious bacterial infection after strip-searching a dozen infected
inmates. She alleged that PHS knew or should have known the inmates
were infected and should have warned staff and taken precautionary
measures. The trial court sustained preliminary objections, finding PHS did
not owe a duty to protect the health of a prison staff member; it owed a
duty only to its patients.
This Court reversed. We held that physicians treating a patient with a
communicable disease had a duty to warn third persons who would be
foreseeably likely to contract the contagious skin disease. The Supreme
Court reversed this Court, finding first that the standard of care for a
physician treating a patient with a communicable disease was to advise the
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patient about the nature of the disease, treat the disease, and inform the
patient how to prevent its transmission to others. The Court continued that
a physician had no duty to third persons outside the doctor-patient
relationship. The Court concluded that there was no special relationship
between PHS and the plaintiff, and “no duty to protect or rescue someone
who is at risk on account of circumstances the defendant had no role in
creating” in the absence of such a special relationship. Seebold, 57 A.3d at
1246.
According to UPMC, in order to proceed, Plaintiffs’ theory of liability
would either have to fall either within an exception to the no-duty rule in
rescue scenarios, or the application of the Althaus factors would have to
militate in favor of creating a new affirmative duty. Appellee UPMC’s brief at
10. Since there was no special relationship between UPMC and Plaintiffs,
UPMC maintains there is no applicable exception to the no-duty rule. As to
the Althaus factors, UPMC argues that the lack of a special relationship
between the parties militates against the imposition of a new affirmative
duty. Additionally, UPMC takes the position that the social utility of imposing
a duty to report upon a health care provider is outweighed by the lack of
foreseeability. In response to Plaintiffs’ contention that foreseeability in the
duty context need only be of the general type of harm, UPMC downplays the
importance of foreseeability in our duty determination. See Seebold,
supra at 1249 (finding foreseeability alone not determinative of duty).
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UPMC characterizes Plaintiffs’ attempt to impose a duty to protect all health
care patients as “entirely unworkable and overarching.” Appellee UPMC’s
brief at 16.
As to the fourth Althaus factor, UPMC argues that the cost of
imposing a duty to report includes the consequences: open-ended and
limitless liability “unchecked by the passage of time, proximity or scope of
harm.” Appellee UPMC’s brief at 17 (quoting Trial Court Opinion, 6/20/13, at
14). It reiterates the trial court’s assumption that, although UPMC intends to
comply with all federal reporting regulations, the inevitable employee error
could result in onerous consequences.
We find Seebold distinguishable as we are not dealing with a
physician-patient relationship. Seebold presented the issue of whether
PHS, a health care provider, owed a duty of reasonable care to warn or
otherwise protect a prison guard charged with strip-searching inmates from
the dangers of the transmission of MRSA from its patients. Our Supreme
Court declined to impose a duty upon a health care provider involved in a
physician/patient relationship to warn at-risk third parties, finding that
considerations such as physician-patient confidentiality and protection of the
physician-patient relationship outweighed considerations favoring imposition
of a duty to warn. Our High Court acknowledged that it had imposed a duty
upon a health care professional to convey information to a third party that
he obtained within the confines of the physician-patient relationship in
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Emerich v. Phila. Ctr. for Human Dev., Inc., 720 A.2d 1032 (Pa. 1998)
(therapist had a duty to warn his patient’s intended victim of the harm but
duty limited to readily-identifiable individuals). The Court declined,
however, to use Emerich, “unique in many respects,” as “a springboard for
the imposition of new and broader duties upon health care providers vis-à-
vis third party non-patients.” Id. at 1233.
While the Seebold Court noted other considerations independent of
the physician-patient relationship, such as prison order and security, the
difficulty in identifying persons at risk in the prison, and access to and the
ability to disseminate the information, which weighed against imposition of a
duty on the facts therein, the decision turned on the physician-patient
relationship. Our High Court refused to impose on physicians engaged in a
physician-patient relationship “some non-specified affirmative obligation
to third-party non-patients relative to communicable diseases,” with
individual juries deciding what the duty would be.11 Herein, UPMC echoes
PHS’s argument that policy considerations counteract such an overly
expansive exposure of health care providers to unlimited liability.
The fact that Kwiatkowski was an employee of UPMC and Maxim, not a
patient, sharply distinguishes the instant case from Seebold. Absent a
____________________________________________
11
In his dissenting opinion, then-Justice McCaffrey took the position that
any alleged failure to warn was the result of the physicians’ failure to
properly diagnose MRSA.
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physician-patient relationship, we need not be concerned with the policy
considerations of privilege and confidentiality flowing from that relationship,
and which create a tension with any duty to report, warn, or protect third
parties at risk. See DiMarco v. Lynch Homes-Chester County, Inc., 583
A.2d 422 (Pa. 1990) (physician owed duty to his patient, not her boyfriend,
to warn and advise about avoiding spread of communicable disease);
compare e.g., Troxel v. A.I. Dupont Inst., 675 A.2d 314 (Pa.Super.
1996) (injured third party could maintain action against physician who failed
to advise his patient of the dangers of spreading her disease to unborn
children of others); Emerich, supra.
Secondly, while we agree with UPMC and Maxim that they had no
special relationship with Plaintiffs, our inquiry does not end there. Where
the defendant stands in some special relationship with the person whose
conduct needs to be controlled, a duty may be imposed. Brezinski v.
World Truck Transfer, Inc., 755 A.2d 36, 40 (Pa.Super. 2000).
Kwiatkowski was allegedly an employee of UPMC and Maxim when the duty
to report arose. A special relationship may include a master's duty to
control a servant. See Restatement (Second) of Torts, § 317 (recognizing
master is under a duty in certain circumstances “to exercise reasonable care
so to control his servant while acting outside the scope of his employment as
to prevent him from intentionally harming others or from so conducting
himself as to create an unreasonable risk of bodily harm to them”). In
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addition, we have imposed a duty upon those in charge of individuals with
dangerous propensities to control those individuals. See Restatement
(Second) of Torts § 319 (“One who takes charge of a third person whom he
knows or should know to be likely to cause bodily harm to others if not
controlled is under a duty to exercise reasonable care to control the third
person to prevent him from doing such harm.”);12 see also Goryeb v.
Commonwealth, Dep't of Public Welfare, 575 A.2d 545, 549 (Pa. 1990)
(finding duty to protect "others" who could foreseeably be affected by a
wrongful discharge of a mental patient consistent with Section 319 of the
Restatement (Second) of Torts and our own prior case law).
UPMC is quick to point out that the master’s duty with regard to a
servant only exists where the servant is upon the master’s premises, using
the master’s chattel, or upon premises he is privileged to enter only due to
his status as the master’s servant, circumstances that it contends are not
applicable herein. It does not address a duty under the principles espoused
in § 319.
____________________________________________
12
Generally, one is not liable for the physical harm caused by the criminal
conduct of a third party unless a special relationship exists between the
actor and the third person’s conduct or a special relationship exists between
the actor and the other that gives the other a right to protection. Emerich
v. Phila. Ctr. for Human Dev., Inc., 720 A.2d 1032 (Pa. 1998); see Feld
v. Merriam, 485 A.2d 742 (Pa. 1984) (landlord has duty to protect tenants
from the foreseeable criminal acts of third persons).
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Although there was no relationship between UPMC and Plaintiffs
herein, Plaintiffs have pled facts that, if proven, could support a finding of a
special relationship between UPMC and Maxim and Kwiatkowski. At the time
the alleged duty arose, Kwiatkowski was the employee/agent of Maxim and
UPMC, and both entities knew that Kwiatkowski was diverting intravenous
drugs that he accessed on UPMC’s premises. Kwiatkowski injected himself,
replaced the drugs with saline, and placed the contaminated needles and
syringes back on the shelf to be used on unsuspecting patients. UPMC
communicated the nature of Kwiatkowski’s criminal conduct to Maxim, and
banned him from its facilities. While Kwiatkowski was in the charge of UPMC
and Maxim, both entities knew he was dangerous and likely to cause bodily
harm to others if not controlled. Reasonable care, according to Plaintiffs,
entailed reporting Kwiatkowski to law enforcement.
We find that Plaintiffs pled facts that could conceivably support
imposition of a duty of care upon both UPMC and Maxim to others based on
their special relationship with Kwiatkowski. Additionally, application of the
Althaus factors on the facts as gleaned from the pleadings weigh in favor of
imposing a duty to report. Duty is predicated upon the relationship existing
between the parties at the relevant time. Althaus, at 1169. There was a
special relationship between Kwiatkowski and UPMC and Maxim when the
alleged duty to report arose, i.e., when Kwiatkowski’s theft and substitution
of controlled substances were exposed. Additionally, UPMC and Maxim knew
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that Kwiatkowski’s addiction, diversion, and substitution of drugs presented
a danger to patients at facilities where he worked, not just UPMC’s patients.
As to the social utility of UPMC and Maxim’s conduct, the second
Althaus factor, it is indisputable that UPMC provides critical health care
services and Maxim plays a role in providing the necessary staffing to
perform those services. However, imposing a duty to report upon health
care providers and staffing agencies will not unduly hinder such entities from
performing their vital functions, and in fact, would operate to their benefit in
protecting these entities from unwittingly hiring drug-impaired and
unreasonably dangerous health care workers. Furthermore, reporting is not
such an arduous task as to divert attention or resources from the mission of
providing quality health care. UPMC is already required to report the
diversion of controlled substances under both federal and state law.
Pursuant to 63 P.S. § 422.4, hospitals are required to report impaired
physicians to the state board of medicine. See Cooper v. Frankford
Health Care Sys., 960 A.2d 134 (Pa.Super. 2008).
The third factor, the risk presented by the diversion, adulteration, and
substitution of medications, weighs heavily in favor of imposing a duty. The
risk was a serious and foreseeable one to UPMC and Maxim. As Plaintiffs
correctly state, foreseeability in the context of duty “means the likelihood of
the occurrence of a general type of risk rather than the likelihood of the
occurrence of the precise chain of events leading to the injury.” Charlie v.
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Erie Ins. Exch., 100 A.3d 244, 256 (Pa.Super 2014). Plaintiffs pled that,
due to the failure of UPMC and Maxim’s failure to report Kwiatkowski to the
DEA or other law enforcement agencies, he gained access to other health
care facilities, exposing the patients in those facilities to the same risk of
contaminated needles, and the transmission of life-threatening
communicable diseases such as HIV and hepatitis C.
As to the fourth Althaus factor, we are not persuaded that the
imposition of a duty to report is so onerous as to be “entirely unworkable or
overarching” as UPMC contends. Appellee UPMC’s brief at 16. Nor do we
cower from claims of exposure to “limitless liability unchecked by the
passage of time, proximity, or scope of harm” for what could be a mere
clerical error. Id. Imposition of a duty is but the first step in imposing
liability. Recovery hinges on proof of breach and causation, and we
recognize that it becomes more difficult to prove the latter with the
intervening circumstances that come with the passage of time.
Finally, we find that the fifth Althaus factor, consideration of the
overall public interest, favors the imposition of a duty of care. It was
foreseeable that Kwiatkowski’s conduct, if unchecked, would place other
hospital patients such as the Plaintiffs at risk for the transmission of an
infectious blood-borne disease. The public health interest in preventing the
transmission of blood-borne pathogens, especially HIV and hepatitis C, is
evidenced by the many statutes and regulations requiring health care
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providers to report incidences of these and other communicable diseases.
This Commonwealth imposes criminal liability upon a health care practitioner
or facility “who treats or examines a person who is suffering from, or who
the health care practitioner or health care facility suspects, because of
symptoms or the appearance of the individual, of having a reportable
disease, infection or condition,” but who fails to report that fact to the Health
Department. See 28 Pa. Code § 27.21a. “Hepatitis, viral, acute and chronic
cases” are among the infections/conditions reportable within five days of
being identified. Id. at (b)(2); see The Disease Prevention and Control Law
of 1955, 35 P.S. § 521.1.
UPMC banned Kwiatkowski from its facilities and informed Maxim of his
conduct. Such action evidences UPMC’s appreciation of the danger
Kwiatkowski posed to its patients. Maxim, despite being fully informed of
the danger Kwiatkowski presented, did not report Kwiatkowski to law
enforcement. Plaintiffs contend herein that Maxim placed Kwiatkowski at
other health care facilities, knowingly and intentionally exposing other
patients to the possibility of contagion. The risk of not reporting
Kwiatkowski to law enforcement and licensing agencies was that he would
seek employment and access to controlled substances to support his
addiction at other health care facilities and endanger patients in those
settings. His practice of injecting himself and substituting saline for the
diverted substances presented an increased risk of serious infection to
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patients elsewhere due to contaminated needles and substances. The
inference Plaintiffs ask us to draw is that the nature of Kwiatkowski’s
addiction, as well as his preferred mode of satisfying that addiction, made it
both foreseeable and highly likely that patients elsewhere would be exposed
to the unreasonable risk of contagion if he was not reported and stopped.
The unacceptable health risks involved, the likelihood of transmission of
blood-borne pathogens to compromised hospital patients, support the
finding of a duty to report.
Were this but a simple drug diversion scenario, where a healthcare
professional stole drugs, injected himself, and properly disposed of the
needle and syringe, our primary concern would be for the welfare of patients
receiving diluted medications followed by overdoses, or being treated by an
impaired health care provider. See Cassella v. State Board of Medicine,
547 A.2d 506 (Pa.Cmwlth. 1988) (recognizing that drug-impaired medical
practitioners present a clear and obvious danger to the public). The facts
herein certainly demonstrate that danger, as well as an even more perilous
scenario with far-reaching public health consequences.
Kwiatkowski was engaged in criminal behavior that constituted a
serious public health risk. In light of Kwiatkowski’s occupation as a health
care worker, his addiction to fentanyl, his known diversion and substitution
of drugs to conceal his habit, we agree with Plaintiffs that it was highly
foreseeable to UPMC and Maxim that, left unchecked, Kwiatkowski would
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seek employment and access to drugs at other health care facilities and
continue that practice. UPMC and Maxim had a special relationship with
Kwiatkowski when his drug diversion and substitution was detected, and
they knew and appreciated the danger he presented to patients generally.
In these circumstances, we find that Plaintiffs pled facts that could support
imposition of a common law duty of care upon both UPMC and Maxim to
report Kwiatkowski’s criminal conduct to the DEA and/or other law
enforcement agencies for prosecution. See 21 C.F.R. § 1301.76(b)
Supplementary Information (“Lack of prompt notification could prevent
effective investigation and prosecution of individuals involved in the
diversion of controlled substances.”).
II. Negligence per se against UPMC
Plaintiffs advance a second theory of liability against UPMC, which was
rejected by the trial court. They pled that UPMC is a registrant permitted to
possess and dispense controlled substances under the Controlled Substances
Act (the “CSA”). Registrants under the CSA have a duty pursuant to 21
C.F.R. § 1301.76(b), to report the diversion of controlled substances to the
Drug Enforcement Agency (“DEA”) within forty-eight hours of discovery to
facilitate investigation and prosecution. Plaintiffs contend that UPMC failed
to report Kwiatkowski’s diversion of its controlled substances to the DEA and
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that the violation of the reporting statute constitutes negligence per se.13
The trial court disagreed, finding there was “nothing in the legislation or
accompanying regulations suggesting that drug diversion by healthcare
employees and its risks to patients are specific subjects that the Controlled
Substances Act addressed.” Trial Court Opinion, 6/20/13, at 6.
Furthermore, the court found the statute was intended to protect the
interests of the general public rather than a specific group of persons
encompassing Appellants.
Negligence per se is defined as “conduct, whether of action or
omission, which may be declared and treated as negligence without any
argument or proof as to the particular surrounding circumstances.” Wagner
v. Anzon, Inc., 684 A.2d 570, 574 (Pa.Super. 1996) (quoting Black's Law
Dictionary, p. 933 (5th ed. 1979)). We start with the premise that, since
ordinances and statutes regulate conduct, they also may impose legal
obligations on individuals. McCloud v. McLaughlin, 837 A.2d 541, 545
(Pa.Super. 2003). As this Court stated in McCloud, “[n]egligence per se is
____________________________________________
13
Pennsylvania has the Controlled Substance, Drug, Device and Cosmetic
Act, 35 P.S. § 780-101 et seq., which like the federal statute classifies
substances such as fentanyl as Schedule II substances with a high potential
for abuse and dependence. Regulations promulgated pursuant to that
legislation require “Persons maintaining stocks or having controlled
substances in production areas or on hand for distribution shall provide
effective controls and procedures to guard against theft and diversion of
substances.” 28 Pa.Code § 25.61(a).
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the law's acknowledgement that through an individual's violation of a statute
or ordinance, it is possible to show that the individual breached his duty to
behave as a reasonable person, i.e., that the individual was negligent.” Id.
However, a court will not use a statute or regulation as the basis of
negligence per se where the purpose of the statute is to "secure to
individuals the enjoyment of rights or privileges to which they are entitled
only as members of the public." Centolanza v. Lehigh Valley Dairies,
635 A.2d 143, 150 (Pa.Super. 1993), aff'd, 658 A.2d 336 (Pa. 1995)
(quoting Restatement (Second) of Torts, § 288(b) (1965)). Furthermore,
before an individual can be held to be negligent per se, his violation of the
statute or ordinance must “cause harm of the kind the statute was intended
to avoid and to a person within the class of persons the statute was intended
to protect." See Dan B. Dobbs, The Law of Torts § 134 (2000). These
requirements are calculated to ensure that the policy behind the legislative
enactment will be appropriately served by using it to impose civil liability.
Lutz v. Chromatex, Inc., 718 F. Supp. 413, 428 (M.D. Pa. 1989). Even
then, negligence per se only supplies the first two elements of negligence:
duty and breach. J.E.J. v. Tri-County Big Brothers, supra at 585;
Cabiroy v. Scipione, 767 A.2d 1078, 1079 (Pa.Super. 2001). There can be
no recovery absent proof that negligence was the cause of the injury.
Schemberg v. Smicherko, 85 A.3d 1071, 1074 (Pa.Super. 2014) (citing
Mahan v. Am-Gard, Inc., 841 A.2d 1052, 1058-1059 (Pa.Super. 2003).
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Thus, to proceed on a negligence per se theory, a plaintiff must prove
the purpose of the statute, at least in part, was to protect the interest of a
specific group of individuals, as opposed to the general public, and that the
statute or regulation clearly applied to the defendant’s conduct. In order to
recover, the plaintiff must also prove that the defendant violated the statute
or regulation and that the violation was the proximate cause of injury.
The application of negligence per se is illustrated in several recent
decisions in this Court. In Cabiroy, supra, we affirmed the trial court’s
reversal of its grant of a non-suit on a negligence per se theory where the
plaintiff offered proof that the defendant administered liquid silicone
injections that were never approved by FDA, which resulted in harm to the
plaintiff. This Court found that the statute that was violated was “designed
to protect an individual such as plaintiff from being administered a non-
labeled, non-sterile unapproved drug to avoid unexpected negative results.”
Cabiroy, supra at 1082. Proof of violation of the statute constituted proof
of duty and breach thereof, and it was up to the factfinder to determine if
that negligence was the cause of the injury.
In Mahan, supra, plaintiff, a bank teller was shot and injured by an
off-duty private detective perpetrating a robbery. She sought and obtained
recovery on a negligence per se theory against the private detective’s
employer based on its admitted violation of the fingerprinting requirement of
the Private Detective Act, 22 P.S. § 23, in its hiring of the detective. On
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appeal, the detective agency argued that the trial court erred first, in
admitting evidence that it violated the fingerprinting requirement as a basis
for finding negligence per se, and second, in permitting the jury to consider
whether the violation was the cause of harm to the teller, since the detective
had not committed any criminal acts in the past that would have been
discovered through fingerprinting. This Court held that the evidence was
relevant and properly admitted, but that the agency’s failure to abide by the
statute was not the proximate cause of the plaintiff’s injuries. We
acknowledged, based on Ford v. Jeffries, 379 A.2d 111, 115 (Pa. 1977),
that the agency could be liable for its negligence despite the detective’s
superseding criminal acts if, at the time of its negligent conduct, it realized
or should have realized the likelihood that such a situation might be created
and that the detective might avail himself of the opportunity to commit such
a tort or crime. However, the detective’s impending criminal conduct was
not foreseeable since fingerprinting would not have disclosed any prior
criminal acts evidencing that the detective had a criminal propensity.
Appellants contend that the purpose of the CSA’s reporting
requirement is, “at least in part, to prevent the harms associated with drug
diversion from befalling” its likely victims. Appellants’ brief at 44. They
direct our attention to the Code of Federal Regulations, specifically 21 C.F.R.
§ 1301.76(b), and the DEA’s “Supplementary Information” regarding the
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regulations, which addresses the requirement that registrants report drug
diversion:
The purpose of immediate notification is to provide an
opportunity for DEA, state, or local participation in the
investigative process when warranted and to create a record that
the theft or significant loss was properly reported. It also alerts
law enforcement personnel to more broadly based circumstances
to provide an opportunity for DEA, state, or local participation in
the investigative process when warranted and to create a record
that the theft or significant loss was properly reported. It also
alerts law enforcement personnel to more broadly based
circumstances or patterns of which the individual registrant may
be unaware. This notification is considered part of a good faith
effort on the part of the regulated industries to maintain
effective controls against the diversion of controlled substances,
as required by Sec. 1301.71(a). Lack of prompt notification
could prevent effective investigation and prosecution of
individuals involved in the diversion of controlled
substances.
(emphasis added). Plaintiffs maintain that drug diversion affects them and
others like them, and UPMC’s violation of that reporting requirement was a
proximate cause of their injuries.
UPMC counters that none of the statutes or regulations cited by
Plaintiffs is intended to protect a group of persons, rather than the public as
a whole. Furthermore, the statutes and regulations are not designed to
protect against the specific harm at issue: the diversion and substitution of
controlled substances by healthcare workers to patients. See McCloud,
supra (violation of statute must cause harm of the type statute was
intended to prevent for negligence per se to apply). UPMC directs our
attention to Gonzales v. Oregon, 546 U.S. 243, 250-51 (2006), where the
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United States Supreme Court construed the main objectives of the CSA as
“combatting drug abuse and controlling the legitimate and illegitimate traffic
in controlled substances.”
Congress enacted the CSA as Title II of the Comprehensive Drug
Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat.
1236 (1970) (codified at 21 U.S.C. §§ 801-904). As the United States
Supreme Court noted in United States v. Moore, 423 U.S. 122, 132 (U.S.
1975), “the Act was intended to ‘strengthen,’ rather than to weaken,
‘existing law enforcement authority in the field of drug abuse.’ (citing 84
Stat. 1236 (1970) (Preamble); see also H. R. Rep. No. 91-1444, p. 1. ("This
legislation is designed to deal in comprehensive fashion with the growing
menace of drug abuse in the United States[.]").
In enacting the statute, Congress recognized that “(1) Many of the
drugs included within this title have a useful and legitimate medical purpose
and are necessary to maintain the health and general welfare of the
American people.” 21 USCS § 801. Nonetheless, it required “[e]very person
who dispenses, or who proposes to dispense, any controlled substance,” to
“obtain from the Attorney General a registration issued in accordance with
the rules and regulations promulgated by him.” 21 USCS § 822(a)(2).
The regulations require registrants, those entities and persons
authorized to manufacture, possess, distribute or dispense controlled
substances, to physically secure controlled substances. In addition, they are
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not permitted “to employ, as an agent or employee . . . who has access to
controlled substances, any person who has been convicted of drug-related
felony offense.” 21 CFR § 1301.76(a). Furthermore, a registrant is required
to report the diversion of controlled substances to the DEA in certain
circumstances. 21 CFR 1301.76(b).
It is apparent that the regulations in question are calculated to ensure
that controlled substances in the possession of registrants are properly
secured. The prohibition against the employment of convicted drug
offenders indicates an awareness of the potential for drug abuse by health
care practitioners, workers, researchers, and pharmacists with lawful access
to drugs through their employment. The reporting requirement is intended
to alert the DEA when legitimately possessed controlled substances are
diverted so that it can investigate and prosecute the individuals responsible.
We are persuaded that the reporting requirement was intended to protect
the public from the dangers associated with the diversion, trafficking, and
abuse of controlled substances in the possession of registrants, i.e.,
hospitals and pharmacies and other licensed persons and entities, by
subjecting diverters to criminal prosecution.14
____________________________________________
14
The CSA also authorizes the DEA to take administrative, civil, and
criminal action against any registrant that fails to maintain effective controls
against diversion. Administrative actions include a letter of admonition for
minor recordkeeping or reporting violations, or hearings for more serious
(Footnote Continued Next Page)
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As a registrant under the Act, UPMC was allegedly required to report to
the DEA Kwiatkowski’s known diversion and substitution of its controlled
substances. Its failure to do so in 2008 effectively foreclosed any DEA
investigation and prosecution of Kwiatkowski at that time. Such reporting
was intended to protect against the harmful consequences of drug abuse,
including the type of harm that resulted herein.
Nonetheless, we agree with the trial court that there is no indication in
the CSA or its regulations that the reporting requirement was intended to
protect a particular group to which Plaintiffs belonged. The CSA’s
comprehensive enforcement scheme is calculated to protect the public from
the dangers resulting from the diversion of drugs and their abuse. We note
that the CSA does not expressly provide for a private right of action but that
fact is not dispositive of the statute’s use as the basis for negligence per se.
However, absent herein is any indication that the purpose of the statute is to
_______________________
(Footnote Continued)
violations. An order to show cause is usually reserved for a registrant’s
ongoing failure to maintain controls against diversion, and can result in
revocation of registration. The DEA is empowered to pursue civil actions
through the U.S. Attorney’s office for monetary penalties for violations of the
recordkeeping and reporting requirements of the CSA. Registrants are also
subject to criminal prosecution for knowing and intentional acts in the
unlawful manufacture and distribution of controlled substances. See 65
Food Drug L.J. 623, 627-628, for an expansive explanation of possible
liability of registrants for violations of the CSA and its regulations.
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protect a particular group of individuals encompassing Plaintiffs.15 See K.H.
ex rel. H.S. v. Kumar, supra at 1087-90 (citing J.E.J., supra at 586, for
proposition that while a violation of the Child Protective Services Law
(“CPSL”) could serve as the predicate for a negligence per se claim, the
minor-plaintiff fell outside the class of children protected by the statute as
he was not connected to the entity bearing the mandatory reporting
obligations). For this reason, we affirm the trial court’s order sustaining the
demurrer as to Plaintiffs’ negligence per se claim against UPMC.
Order affirmed in part and reversed in part. Case remanded for
further proceedings consistent with this opinion. Jurisdiction relinquished.
Judge Mundy Joins the Opinion
Judge Jenkins files a Dissenting Opinion.
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15
After a duty has been established, a statute or regulation may be
admissible evidence of the requisite standard of care. See Brogley v.
Chambersburg Engineering Co., 452 A.2d 743 (Pa.Super. 1982)
(sanctioning admission of evidence of OSHA regulation and its violation as
probative of employer’s negligence).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2016
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