By Gregory Freeman, Author

EXECUTIVE SUMMARY

A hospital in Washington is responding to litigation involving exposure to hepatitis C from a nurse. The hospital notified 2,600 patients of a possible exposure.

• The notification created more liability exposure than the nurse’s actions.

• Plaintiffs are claiming emotional damages from waiting to learn about possible infection.

• Hospitals should work to minimize the stress that can follow such notifications.


A hospital in Puyallup, WA, is facing a class-action lawsuit from patients possibly exposed to hepatitis C but is taking the right steps to mitigate the potential damage, says a malpractice attorney who is monitoring the case.

The case illustrates how notifying patients of such possible harm may actually create more exposure than the original incident, says Benjamin J. Fenton, JD, partner with the Fenton Law Group in Los Angeles. However, full notification is still the right move.

Up to 2,600 patients may have been exposed to the infection by a nurse at the hospital.

The class action lawsuit in Pierce County Superior Court alleges that the hospital and its parent company breached their care duties. Another patient sued the hospital a week earlier with the same allegations.

The plaintiff was treated in the hospital’s ED on Dec. 25, 2017, the lawsuit says, and later received a notice from the hospital saying she may have been exposed to hepatitis C. The hospital recommended she be tested.

The woman tested negative for hepatitis C, hepatitis B, and HIV, but may need to be tested later. The lawsuit claims the potentially exposed patients have been forced to endure worry, stress, inconvenience, and the “physical invasion and other effects of the testing process.”

Two other patients tested positive for hepatitis, and the lawsuit notes that the hospital identified a 31-year-old nurse as the “common denominator” in the exposures. She was arrested but released without charges. The state nursing commission suspended her license for unprofessional conduct, the lawsuit notes.

The class-action lawsuit names the nurse and says she used needles on patients after first using them on herself with narcotics.

Hospital Improves Narcotics Process

The hospital issued a statement confirming some of the allegations, saying it conducted an investigation along with local and state health department officials and “determined that one of our nurses was removing higher-than-normal amounts of narcotics from our dispensing system and admitted to diverting medications intended for patients. She tested positive for hepatitis C and had treated both of the patients we know are infected.”

The nurse no longer works for the hospital, it said.

As part of the investigation, the hospital “thoroughly examined its processes to identify areas for improvement to prevent this from happening again. One area identified is around reporting of narcotic use. A new report was added to our existing detailed reporting about medication use in the hospital. This new report will help identify employees who deviate from standard practices for medication use. This new report is now part of our ongoing narcotic monitoring program and will be closely reviewed on an ongoing basis.”

The hospital faces significant liability but appears so far to be responding well to the crisis, Fenton says.

“When risk management learned of this situation, they jumped into action and notified pretty much every patient the nurse treated,” Fenton says. “They provided a notification to all those patients even though most of them are not testing positive. Risk management acted in a conservative way, which I think is smart.”

Notification Creates Risk

Notifying such a large number of patients opens the hospital up to more litigation than might otherwise have occurred, but Fenton says the hospital was right to avoid any impression it was trying to downplay the incident or neglect the safety of some patients.

“The lawsuit is seeking damages not necessarily for patients testing positive, because there aren’t many, but for the emotional distress people might feel until such time as they have sufficient testing for them to be sure they’re past the period in which they might test positive,” Fenton says. “So the hospital was in a bit of a rock-and-a-hard-place situation. The hospital had to notify the patients, but that exposes them to lawsuits claiming this emotional distress from being notified.”

The hospital could not have avoided that exposure without failing to notify even those patients at low risk of infection, Fenton says. In such situations, hospital risk managers should remember that the most significant exposure might stem from the notifications rather than the underlying event.

“Whatever you can do to minimize the emotional distress caused by the notifications will benefit the patient and the hospital as well. That may mean, in addition, sending a well-crafted letter that explains the potential harm but also makes clear how low the risk is,” Fenton says.

Fenton compares the situation to how hospitals must notify patients of a HIPAA violation but also provide credit watch services and similar aid to allay fears. Transparency and proactive assistance to reduce stress is the best strategy, he says.

“You could have people reach out by telephone to answer any questions and coordinate testing as soon as possible,” he says. “The hospital could make its lab testing hours available longer in the day and add more staff, anything that would make the process easier and get the likely negative test results to the patient quickly.”

SOURCE

• Benjamin J. Fenton, JD, Partner, Fenton Law Group, Los Angeles. Email: bfenton@fentonlawgroup.com.