This story began when HealthONE Swedish Medical Center (Englewood, CO) released a list of 2,900 patients possibly exposed to dangerous HIV and Hepatitis infections as a result of a surgical tech who ‘diverted drugs.’
Former Surgical Technologist Rocky Allen was identified and indicted by a federal grand jury on drug diversion and possession of Fentanyl charges, and was subsequently announced that he carries HIV (the virus that leads to AIDS) but not Hepatitis. Many patients who have tested positive for Hepatitis are skeptical of the validity of these test results.
Investigations revealed that Allen had previously been court-martialed for stealing 30 vials of Fentanyl during his service as a surgical technologist in the Navy, that he was addicted to the IV drug, and that this information would have been readily available to any hospital who called the Navy to inquire about his background and service record. It is well known in the Hospital Compliance industry that drug addicts are 100% likely to repeat the behavior with access to the drugs. Thus, the exposure in the operating rooms where Allen worked was avoidable and unprecedented, causing over 6,000 patients to have needlessly been exposed to life-threatening pathogens and testing. The State Dep’t of Public Health investigated and found Swedish Medical Center deficiencies related to the occurrence. CDPHE Report
Hospital liability trial lawyer James “Jim” Avery was one of the first lawyers contacted by patients effected by this life threatening exposure, and has since been retained by more than one hundred fifty patients and spouses. Avery has taken action by initiating a mass tort action seeking substantial damages on behalf of dozens of patients in four states (AZ, CA, CO, WA) against five (UW Northwest Hospital (WA), Scripps Green Hospital (CA), Banner Thunderbird Medical Center (AZ), HonorHealth John C. Lincoln Medical Center (AZ) and HealthOne Swedish Medical Center (CO)) of the six hospitals where Allen worked. In total, over six thousand patients have been advised to get tested as they were exposed as a result of Allen’s untreated addiction.
Allen originally plead not guilt to charges of tampering and theft of Fentanyl, but on June 28 notified court officials that he plans to change his plea. Allen plead guilty on July 12, 2016 and admitted the facts alleged by the U.S. According to the U.S. Attorney, the sentence he can receive is up to ten years for tampering and four years for theft, or the sentences could run consecutively (up to 14 years). The sentencing hearing will be conducted after a probation report is compiled and is scheduled for October 13 in USDC. “I think most of my clients feel he will get what he deserves, the maximum sentence, but there should be someone from the hospital in jail with him for failing to do their job and putting Allen in a position to expose thousands of patients to HIV” is Jim Avery’s reaction.
Avery has hand picked a team of lawyers for this mass tort action, including mass tort specialists Rick Paul and Jack McInnes (PaulMcInnes-Kansas City), and Dan Sloane (Hillyard, Wahlberg, Kudla, Sloane and Woodruff, LLP-Denver), as well as local counsel in Washington, California and Arizona. If you would like to join in the group of patients represented by Jim Avery, please complete the form below, or in the side bar of this page, or call 303-840-2222.
This case isn’t just about diverted drugs by a former employee (with known HIV-initially just identified as a ‘blood borne pathogen’) as claimed by the Hospitals, its about dirty (contaminated) needles in the OR at five or six hospitals possibly used on thousands of patients in a terrible lapse of security that was repeated in four states as Allen continued his addiction and trail of dismissals. In a violation of state and federal law, drugs including Intravenous Fentanyl were reportedly left unsecured in vacant operating rooms accessible by unlicensed staff such as Rocky Allen (where the theft occurred). Rocky Allen has been reported to have tested positive for “blood borne pathogens” (known HIV, possibly also Hepatitis B or C) by Federal authorities. Patients were reporting excruciating and inexplicable pain in the PACU (recovery), and this should have been reported by Anesthesiologists and PACU nurses, a red flag to Swedish and other hospitals where the surgical pain killer was diverted. While the press is reporting the lack of a federal database or other method of tracking known offenders, these Hospitals were well aware of the lack of licensing requirements or an offender database at the time Allen was hired. Furthermore, Allen had been dishonorably discharged from the Navy, a training ground for Allen and part of his employment history that was disclosed to Swedish; however, the Hospitals either didn’t inquire or chose to hire Allen in spite of that negative history. Drug security is a big issue in hospitals, and one which the Hospital is accountable for. Hospitals need to be accountable to its patients, but instead of that, they have forced litigation to get answers to questions about how this happened and how serious is the risk.
Lawyer Jim Avery began investigating the case for client Patrick Evans (the first patient to speak out on FOX31 and 9NEWS). Mr. Evans was told by a former nurse of his at Swedish that the ‘diverted drugs’ in this case occurred when the tech, identified as Rocky Allen, is suspected of taking syringes of pain killers from surgical trays, injected the drugs into himself intravenously, then refilled the needles with saline and replaced them on the surgical tray. The saline, thought to be pain killer meds, were then injected into the patient during surgery. Dirty needles were possibly used on patients. If this is the case, then the risk of infection is substantial if the tech had any infections himself. We don’t know the answer to that question. The time period of the tech’s employment at Swedish was August 15, 2015 to January 22, 2016, so patients undergoing surgery during that time are subject to the warning to get tested for HIV, Hep B and C. Allen was tested after being caught removing a syringe of fentanyl from an anesthesia drug tray, and found to have fentanyl and marijuana in his system. Obviously, the incident where he was caught removing the needle is not the reason he had fentanyl in his system, he must have been doing this previously and possibly ever since his first day of employment.
The hospital is putting all the blame on the tech and claims the chance of infection is very low. The tough question, how did this tech get away with stealing injecting pain killers (while high on marijuana) from a surgical tray for five months? What policies were in place to protect the patient? Aren’t the surgical trays sealed when prepared, and opened by the surgeon or anesthesiologist? The risk of infection, of course, is based in part on whether the tech was carrying an infection at the time. Why hasn’t he been tested and the results revealed? (We know he gave urine tests because the Hospital has said he tested positive for pain killers and marijuana.) If Allen tested negative, would Swedish need to warn patients to get tested? If the tech was positive, and there was direct contact with a shared needle used intravenously (ie., dirty needles in the OR for possibly five months), then is the risk of infection really ‘low’? In short, there are many questions that patients are entitled to get answers to, and should not be left in uncertainty. Records show Allen moved to Colorado from Washington state with a time in between in Arizona. Further investigation revealed Allen was involved in drug misuse at every hospital he has worked at since his discharge from the Navy.
Ask the doctors who say the risk is low if they would inject themselves with a dirty needle, even once, no matter who the ‘prior user’ might be, let alone a drug addict.
The question is asked whether the Hospital is liable for the actions of the tech. Wrong question. The question should be whether the Hospital took adequate precautions and followed accepted procedures to protect patients from risky employees and foreseeable ‘drug diversion.’ Drug diversion is an everyday occurrence in hospitals, but how can an addict be stealing IV narcotic painkillers in the OR for up to 5 months (at Swedish) and not get detected? Why isn’t this happening at other hospitals? There is a serious flaw in the OR patient protection system at Swedish.
Recently, it was discovered that Swedish outsourced the background check on Rocky Allen to a Texas company called Precheck, who has been joined in the lawsuit. Here is the local ABC Channel 4 News story: Hospital Outsourced Background Check
Here is a copy of the Health Warning letter issued to patients by Swedish Medical Center on 2/1/16: Swedish Patient Warning Letter Here is a copy of the CDPHE statement about the infection risk: Statement of June 1 2016.
Here is a story about the Washington Dep’t of Health charges against Northwest Hospital on 5/19/16: WDOH Charges Northwest Hospital
Here is a release from the U. S. Attorney summarizing Allen’s trail of drug abuse: Court document
Important Case Update: On August 15, 2016, the presiding Denver District Judge (Catherine Lemon) in the Swedish Medical Center case denied the Hospital’s motion to dismiss (claiming the Plaintiffs suffered no cognizable injury as a result of its conduct). A copy of the Order can be found here: Order Denying Hospital Motion to Dismiss. Meanwhile, the Class Action lawsuit filed in Federal Court was dismissed.
Long time Colorado trial lawyer (2016 Super Lawyer(2)-Plaintiff’s Medical Malpractice & Personal Injury) Jim Avery has 34 years experience handling hospital liability cases, having begun his career in 1982 representing University Hospital and physicians. He was responsible for breaking the news on the Craniosynostosis epidemic at Children’s Hospital which case involved over 600 infants who had unnecessary skull surgery, including a twin baby girl who nearly died during the surgery. Avery is now representing many patients exposed to the dirty needles, and may bring a class action lawsuit against HealthONE Swedish Medical Center.
WHAT YOU NEED TO KNOW:
First, everyone should get tested, either at LabCorp (payment pre-arranged by HealthONE and battery of tests selected by Health Department in conjunction with CDC and Swedish Infectious Disease consultant) or any community health clinic. The Swedish/DOH test battery ordered at LabCorp is likely more extensive than what you can get at Denver or Jefferson County Public Health, or Tri-County Public Health clinics, who can perform basic HIV testing for about $30. If you use your own doctor or clinic for testing, you can request reimbursement from HealthONE/Swedish. Your local health department clinic will likely give you quicker results but they might not be complete. Here is a link to the page to locate testing facility near you: HIV Test Facilities.
LabCorp will report your results to Swedish where they will become part of your health record. The Swedish protocol will be to contact you via a customer service nurse if your results are negative, but if positive, you should be contacted by an Infectious Disease doctor or nurse who can answer questions about the test results.
It is the Colorado Department of Health that is directing the scope of the investigation and testing, not Swedish. Swedish reported the drug diversion by an employee to the Health Department and from that time is supposed to be following DOH orders. Letters to the effect that Swedish is doing this out of concern for their patients should be seen for what they are, marketing and damage control efforts. Swedish will want to focus all the attention on the drug user, and keep the attention away from itself and its possible lapses in drug handling protocol or security.
The CDOH had authority to order the Tech to submit to blood tests. The CDOH knew Allen’s HIV results early on in the investigation (Feb 2) but would not have them released these except to law enforcement authorities.
The identify of Swedish Medical Surgical Technologist, Rocky Allen, was determined from Medical Board licensing records and FEDERAL CRIMINAL INDICTMENT due to his immediate suspension of license after testing positive for narcotics at Swedish. A Federal criminal case is pending in the U.S. District Court, District of Colorado. He is charged with multiple drug related offenses. Rather than accept any responsibility, Swedish seeks to blame the entire incident on the Surgical Tech’s rogue behavior. Other physicians and hospitals, notably Denver Health, are refusing to treat infected Swedish patients, on the basis that the incident is 100% Swedish’s responsibility. Swedish denies any knowledge of Denver Health’s policy of refusing to treat infected patients, or give consultations to ‘at risk’ patients. Swedish has agreed to pay for an independent Infectious Disease consultation for a patient who tested positive (but was thought by Swedish ID expert Dr. Ed Septimus to have been an unrelated exposure). Swedish has also agreed to pay for retesting of patients who are initially tested within the 3 month incubation period for Hep-B.
If you want to take action, you should be aware that there is no claim in Colorado for pure emotional distress, unless intentional or outrageous conduct is alleged (such as the claim against against the Tech), so it is important to document any physical manifestation of the injury such as sleeplessness, nightmares, headaches, changes in blood pressure, heart rate or breathing. If you are having any of these symptoms, report them to your doctor immediately.
State Health Departments have jurisdiction over Hospitals, as does Medicaid and Medicare. The Joint Commission, which is a national health organization accreditation society should be investigating the Hospital breaches in protocol, which allowed this to happen.
Complaints may be filed with the Joint Commission (accrediting agency for Swedish Hospital): Joint Commission
Call a malpractice lawyer. James “Jim” Avery has been repeatedly interviewed about the case and is representing a group of patients, and you can be included by filling out the contact form in the sidebar, or call 303-840-2222. (We apologize but some forms are not working. If you filled out the form and don’t get an emailed response from our firm, then try again or call 303.840.2222. Thank you.)
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Denver Post investigative reports here: Denver Post Feb. 28, 2016, Denver Post Mar 28 2016, Denver Post Apr 23 2016, Denver Post May 19, 2016, Denver Post June 1, 2016
Los Angeles Times report: LA Times May 29 2016 , LA Times Jun 3 2016
9 News story here: Swedish Testing Patients for HIV, Hepatitis
FOX31 story here: Swedish Surgical Tech Under Investigation
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