“Limitless liability.”

That's what health care providers in Pennsylvania would be exposed to if the state Supreme Court determined that UPMC could be liable for the conduct of a former drug-addicted employee who caused a hepatitis C outbreak in Kansas two years after being fired by the Pittsburgh-based hospital, a lawyer representing the hospital told the justices.

Attorney John Conti of Dickie, McCamey & Chilcote argued before the Supreme Court Wednesday that UPMC could not have owed a duty to the plaintiffs, who were exposed to the disease in a hospital in Kansas with syringes the former UPMC lab tech had infected. The Superior Court's decision last year to allow the cases to proceed past the preliminary objections stage was an error that could greatly expand liability, he contended.

“That puts an enormousness burden on the already burdened health care providers,” Conti said.

The suits all stem from the conduct of David Kwiatkowski, who in 2013 was sentenced to 39 years in prison for causing more than 40 people to become infected with hepatitis C. Kwiatkowski caused the outbreak by injecting himself with painkillers, like fentanyl and morphine, while at the hospitals where he worked. He would then refill the syringes with water, and reshelve them to avoid being detected.

According to court papers, UPMC fired Kwiatkowski in 2008 after an employee found him stealing a syringe. He was later found to have three empty fentanyl syringes on him, an empty syringe was found in his locker, and he tested positive for fentanyl and opiates.

After he was fired he went on to work at eight additional hospitals, including the Hays Medical Center in Kansas, which is where he came into contact with the plaintiffs, who were patients in the cardiac catheterization unit. The plaintiffs all received medication through syringes Kwiatkowski had previously used, and one patient died from the infection.

The plaintiffs contended that UPMC and Maxim Healthcare Services should have reported Kwiatkowski after he was fired for stealing a syringe and testing positive for opiates.

During arguments Wednesday, Justice David Wecht was quick to question whether the liability exposure for hospitals would really be limitless.

“There's a limit,” Wecht said. “The limit is: comply with the reg.”

The regulation at issue requires hospitals to report to federal drug enforcement authorities when employees are improperly accessing controlled substances, like fentanyl.

Conti said that the failure to report Kwiatkowski's conduct was essentially a clerical error, and further contended that, not only is the regulation vague as there are no temporal or geographical limits, but Kwiatkowski's conduct at UPMC was also too attenuated from his conduct elsewhere for the plaintiffs to establish any foreseeability on the part of UPMC.

“The duty is very imprecise. Who are we to notify, and of what?” Conti asked. “The duty has to be practical.”

Justice Debra Todd also suggested that imposing the duty would essentially mean requiring health care facilities to act as a law enforcement mechanism, which Conti agreed.

Lamb McErlane attorney Maureen McBride, who is representing the staffing agency that placed Kwiatkowski, said the pleadings were also sparse and conclusory, especially in regards to her client.

“Maxim was never told he stole drugs,” she said.

However, Kansas City, Missouri, attorney Lynn Johnson of Shamberg, Johnson & Bergman, who is representing the plaintiffs, said the duty is much more simple than either defense attorney was arguing.

“This a case involving a general duty … not to place others at risk of harm,” he said. “This is not a new duty.”

Johnson noted that the lab tech was not a patient, but an employee, and said the defendants had a duty to make sure its health care providers were safe people.

“Diversion [which is a term for when a health care employee uses drugs intended for patients] is one of the most insidious things a health care provider can do,” Johnson said.

Max Mitchell can be contacted at 215-557-2354 or [email protected]. Follow him on Twitter @MMitchellTLI.